Existing law authorizes the court to grant pretrial diversion to a defendant diagnosed with a mental disorder if the defendant satisfies certain eligibility requirements and if the court determines that the defendant is suitable for diversion. Existing law excludes a defendant from diversion for specified charged offenses, including, among others, murder, voluntary manslaughter, rape, or continuous sexual abuse of a child, as specified.

This bill would expand those exclusions to prohibit a defendant from being placed into a diversion program if they are charged with child abuse and endangerment, inflicting cruel or inhuman corporal punishment on a child resulting in an injury, assault of a child under 8 years of age resulting in the death of the child, human trafficking, and any crime that causes great bodily injury, as specified.

Date of Hearing:

Deputy Chief Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Nick Schultz, Chair

ABPCA Bill Id:AB 433

Author:(Krell) – As Introduced Ver:February 5, 2025

SUMMARY:

Makes additional specified crimes ineligible for mental health diversion. Specifically, this bill: Excludes a person charged with any of the following from being considered by the court for mental health diversion:

1. Child abuse and endangerment;
   
2. Inflicting cruel or inhuman corporal punishment on a child resulting in injury;
   
3. Assault of a child under 8 years of age resulting in death;
   
4. Human trafficking; or,
   
5. Any crime that causes great bodily injury.

EXISTING LAW:

1. States that the purpose of mental health diversion is to promote the following:
   1. Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety;
      
   2. Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings; and,
      
   3. Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders. (Pen. Code, § 1001.35.)
2. Authorizes a court to, after considering the positions of the defense and prosecution, grant pretrial mental health diversion to defendant charged with a misdemeanor or a felony if the defendant meets the following eligibility and suitability requirements:
   1. The defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia, and the defense produces evidence of the defendant’s mental disorder which must include a diagnosis by a qualified mental health expert within the last five years;
      
   2. The defendant’s mental disorder was a significant factor in the commission of the charged offense, as provided;
      
   3. In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment;
      
   4. The defendant consents to diversion and waives their right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment due to the their mental incompetence and cannot consent to diversion or give a knowing and intelligent waiver of their right to a speedy trial;
      
   5. The defendant agrees to comply with treatment as a condition of diversion; and,
      
   6. The defendant will not pose an unreasonable risk of danger to public safety, as defined, if treated in the community. In making this determination, the court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. (Pen. Code, § 1001.36, subds. (a)-(c).)
3. Contains a presumption that the defendant's mental disorder was a significant factor in the commission of the offense, which can be rebutted with clear and convincing evidence. (Pen. Code § 1001.36, subd. (b)(2).)
4. Excludes defendants from mental health diversion eligibility if they are charged with murder, voluntary manslaughter, an offense requiring sex-offender registration (except for indecent exposure), or offenses involving weapons of mass destruction. (Pen. Code, § 1001.36, subd. (d).)
5. States that at any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. (Pen. Code, § 1001.36, subd. (e).)
6. Provides that the hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate. (Ibid.)
7. Defines “pretrial diversion” for purposes of mental health diversion as the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to the following conditions:
   1. The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant;
   2. The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services;
   3. The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment. (Pen. Code, § 1001.36, subd. (f).)
      
8. States that an offense may be diverted no longer than two years if it is a felony, and one year if it is a misdemeanor. (Pen. Code, § 1001.36, subd. (f)(1)(C).)
9. States that if any of the following circumstances exists, the court shall, after proper notice, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant:
   1. The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence;
      
   2. The defendant is charged with an additional felony allegedly committed during the pretrial diversion;
      
   3. The defendant is engaged in criminal conduct rendering him or her unsuitable for diversion; or,
      
   4. A qualified mental health expert opines that:
      
      1. The defendant is performing unsatisfactorily in the assigned program; or
         
      2. The defendant is gravely disabled, as defined. (Pen. Code, § 1001.36, subd. (g).)
10. Requires the court to dismiss the criminal charges if the defendant has performed satisfactorily in diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. (Pen. Code, § 1001.36, subd. (h).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Human trafficking, child abuse, and spousal abuse resulting in great bodily injury are violent crimes that create long-lasting physical and emotional trauma on victims. The intent of pretrial mental health diversion was to create an alternative method to criminal adjudication. While there are certain cases where pretrial mental health diversion would be an appropriate alternative to criminal sentencing, this law fails to provide justice for victims who have been trafficked, abused as children, and individuals who have sustained great bodily injury. As applied to offenders who are dangerous and seek to continue to abuse their victims, this law creates a major public safety gap.”
2. Incarceration of Offenders with Mental Disorders: Studies show that people with mental disorders are overrepresented in jails and prisons.^[1] According to a 2019 study, more than 30% of the state’s prison and 23 % of the jail populations have a mental illness.^[2] Not only have the numbers of inmates with mental illness increased, the severity of psychiatric symptoms among inmates is also on the rise.^[3] This population tends to serve longer sentences than the general population^[4] and have a higher recidivism rate. Promoting treatment over incarceration has shown positive results in reducing recidivism:

“To avoid incarceration, individuals with serious mental illness need to be diverted from the legal system and offered rehabilitative resources. The homeless comprise a significant share of individuals who come to the attention of law enforcement. A recent review revealed that lifetime arrest rates of homeless individuals with serious mental illness ranged from 62.9% to 90.0%, compared with approximately 15.0% in the general population. For this population, stable housing is a major issue. A recent randomized trial comparing housing first with assertive community treatment with treatment as usual demonstrated significantly decreased rates of arrest among those receiving assertive community treatment at 2 years. These results suggest that efforts to provide stable, affordable, and safe shelter for homeless individuals may lead to lower rates of involvement in the justice system...

When individuals with serious mental illness are brought to court attention, several models have demonstrated positive outcomes, including mental health courts, drug courts, and Veterans Treatment Courts. Although they serve different populations, the common goal of all these court formats is to address the causes of behavior that brought an offender to police attention. Mental health courts are becoming more common in different communities, each with slight variations; however, common features include a specialized court docket that emphasizes problem solving, community-based treatment plans that are designed and supervised by judicial and clinical staff, regular follow-up with incentives and sanctions related to treatment adherence, and clearly defined “graduation” criteria. A recent prospective study of 169 individuals showed that the likelihood of perpetrating violence during the following year was significantly lower among participants processed through a mental health court than among individuals in a matched comparison group who were processed through traditional courts (odds ratio, 0.39; 95% CI, 0.16-0.95; P = .04).”^[5]

1. Competency in Criminal Proceedings and Growing Incompetent to Stand Trial (IST) Population: The Due Process Clause of the United States Constitution prohibits the criminal prosecution of a defendant who is not mentally competent to stand trial. Existing law provides that if a person has been charged with a crime and is not able to understand the nature of the criminal proceedings and/or is not able to assist counsel in his or her defense, the court may determine that the offender is IST. (Pen. Code § 1367.) When the court issues an order for a hearing into the present mental competence of the defendant, all proceedings in the criminal prosecution are suspended until the question of present mental competence has been determined. (Pen. Code, §1368, subd. (c).)

In order to determine mental competence, the court must appoint a psychiatrist or licensed psychologist to examine the defendant. If defense counsel opposes a finding on incompetence, the court must appoint two experts: one chosen by the defense, one by the prosecution. (Pen. Code, § 11369, subd. (a).) The examining expert(s) must evaluate the defendant’s alleged mental disorder and the defendant’s ability to understand the proceedings and assist counsel, as well as address whether antipsychotic medication is medically appropriate. (Pen. Code, § 1369, subd. (a).)

Both parties have a right to a jury trial to decide competency. (Pen. Code, § 1369.) A formal trial is not required when jury trial has been waived. (People v. Harris (1993) 14 Cal.App.4th 984.) The burden of proof is on the party seeking a finding of incompetence. (People v. Skeirik (1991) 229 Cal.App.3d 444, 459-460.) In order to be competent to stand trial, “a defendant must have sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him or her.” (People v. Oglesby (2008) 158 Cal.App.4th 818, 827 citing People v. Ramos (2004) 34 Cal.4th 494, 507.) Because a defendant is initially considered competent to stand trial (Medina v. California (1992) 505 U.S. 437), usually this means that the defense bears the burden of proof to establish incompetence. Therefore, defense counsel must first present evidence to support mental incompetence. However, if defense counsel does not want to offer evidence to have the defendant declared incompetent, the prosecution may. Each party may offer rebuttal evidence. Final arguments are presented to the court or jury, with the prosecution going first, followed by defense counsel. (Pen. Code, § 1369, subds. (b)-(e).)

If after an examination and hearing the defendant is found IST, the criminal proceedings are suspended and the court shall order the defendant to be referred to DSH, or to any other available public or private treatment facility, including a community-based residential treatment system if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendant’s speedy restoration to mental competence, or placed on outpatient status, except as specified. (Pen. Code § 1368, subd. (c) and 1370, subd. (a)(1)(B).) The court may also make a determination as to whether the defendant is an appropriate candidate for mental health diversion pursuant to Penal Code section 1001.36.

California, similar to the rest of the nation, has seen a significant increase over the last decade in the number of individuals with serious mental illness who become justice-involved and deemed IST on felony charges. A 2017 study conducted by the National Association of State Mental Health Program Directors Research Institute found that from 1999 to 2014, the overall number of forensic patients in state hospitals increased by 74% while the number of IST patients increased by 72% during that same period.^[6] Due to increasingly long waiting period to be admitted to the Department of State Hospitals (DSH) for treatment, in 2015, the American Civil Liberties Union sued DSH. (See Stiavetti v. Clendenin (2021) 65 Cal.App.5th 691.) In Stiavetti, the appellate court held that the long waitlist for competency restoration treatment violates the due process rights of people found to be IST. (Id. at p. 737.) The Court ordered that DSH must begin substantive restoration services within 28 days of being placed on the list. (Id. at p. 730.) The court’s order is being implemented in phases, with the original target date being set on February 27, 2024 to meet the 28 day standard.

However, on October 6, 2023, the court modified the interim benchmarks and final target date for compliance with the 28 day standard as follows: March 1, 2024 – provide substantive treatment services within 60 days; July 1, 2024 – within 45 days; November 1, 2024 – within 33 days; and March 1, 2025 – within 28 days.^[7]

In 2021, the Legislature charged the California Health & Human Services Agency and the DSH to convene an IST Solutions Workgroup to identify actionable solutions that address this increasing population.^[8] The IST Workgroup released a report in November 2021 that outlined system improvements and one of the changes discussed was mental health diversion^[9]:

By FY 2017-18, DSH recognized that the demand for IST treatment services was not going to be met by capacity created within the State Hospital system. At this time the department began working to establish treatment pathways in the community with the long-term goal of decreasing demand for State Hospital services by connecting more people with Serious Mental Illness into ongoing community care. The Budget Act of 2018 included funding for two major new programs to help DSH realize this vision.

The Budget Act of 2018 allocated $13.1million for DSH to contract with the Los Angeles County Office of Diversion and Reentry (ODR) for the first community-based restoration (CBR) program in the state. In this program, ODR subcontracts for housing and treatment services for IST patients in the community. Most IST patients in this program live in unlocked residential settings with wraparound treatment services provided on site. The original CBR program provided funding for 150 beds; investments in the LA program since 2018 has increased the program size to 515 beds. In addition, DSH has received funding to implement additional CBR programs across the state. The Budget Act of 2021 included ongoing funding to add an additional 252 CBR beds in counties outside of Los Angeles, bringing the total number of funded CBR beds to 767.

The Budget Act of 2018 also allocated DSH $100 million (one-time) to establish the DSH Felony Mental Health Diversion (Diversion) pilot program. Of this funding, $99.5 million was earmarked to send directly to counties that chose to contract with DSH to establish a pilot Diversion program (the remaining $500,000 was for program administration and data collection support at DSH). Assembly Bill 1810 (2018) established the legal (Penal Code (PC) 1001.35-1001.36) and programmatic (Welfare & Institutions Code (WIC) 4361) infrastructure to authorize general mental health diversion and the DSH-funded Diversion program. The original Diversion pilot program includes 24 counties who have committed to serving up to 820 individuals over the course of their three-year pilot programs.

The report noted that IST restoration of competency is not an adequate long-term treatment plan. The Workgroup looked at the 3-year post discharge recidivism rates using the Department of Justice’s criminal offender record information data and found that recidivism rates are still high – about 70% rearrest post-discharge – which shows that whatever circumstances led to an individual’s prior arrest have likely not changed and most IST patients are stuck looping through the criminal justice system and DSH.^[10] The solutions identified by the report included expanding community-based treatment and diversion options for felony ISTs that will help end the cycle of criminalization by connecting patients to comprehensive behavioral health treatment.^[11]

This bill would make people charged with child abuse and endangerment, inflicting cruel or inhuman corporal punishment on a child resulting in an injury, assault of a child under 8 years of age resulting in the death of the child, human trafficking, and any crime that causes great bodily injury ineligible for mental health diversion. As discussed above, mental health diversion is an alternative to an IST finding. Removing diversion as an option will likely result in more people proceeding with the IST process with the goal of restoration of competency. This will place more burdens on an already overburdened system that are currently under a court order to provide services within a shortened time frame in order to meet constitutional standards that has already been shown to not be a long-term solution for the individual or the community in addressing public safety.

1. Mental Health Diversion: Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions. A defendant may not be required to admit guilt as a prerequisite for placement in a pretrial diversion program. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense. If diversion is not successfully completed, the criminal proceedings resume, however, a hearing to terminate diversion is required.

In 2018, the Legislature enacted a law authorizing pretrial diversion of eligible defendants with mental disorders. Under the mental health diversion law, in order to be eligible for diversion, 1) the defendant must suffer from a mental disorder, except those specifically excluded, 2) that played a significant factor in the commission of the charged offense; 3) in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; 4) the defendant must consent to diversion and waive the right to a speedy trial; 5) the defendant must agree to comply with treatment as a condition of diversion; and 6) the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined, if treated in the community. (Pen. Code, § 1001.36, subds. (b)-(c).) The law also states that a defendant is not eligible if they are charged with specified crimes, including murder, voluntary manslaughter, specified sex crimes and any crime requiring sex offender registration. (Pen. Code, § 1001.36, subd. (d).)

In 2022, the Legislature amended the mental health diversion law to, among other things restate that granting diversion is in the trial court’s discretion in subdivision (a) (the original law provided the court’s discretion in subdivision (h)) and to require the court to find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not.^[12] The cited reason for this change was a recommendation from the Committee on the Revision of the Penal Code.^[13] One of the Committee’s recommendations, after staff’s exhaustive research and receiving public testimony from expert witnesses including crime victims, law enforcement leaders, judges, and criminal defense experts and advocates, was to strengthen the mental health diversion law by increasing its use in appropriate cases, with include consideration of risk to public safety. Specifically, the Committee recommended that the law be changed to simplify the procedural process for obtaining diversion by presuming that a defendant’s diagnosed “mental disorder” has a connection to their offense. A judge could deny diversion if that presumption was rebutted or for other reasons currently permitted under the law, including finding that the individual would pose an unreasonable risk to public safety if placed in a diversion program.^[14]

In addition to the eligibility requirements of the defendant, mental health treatment program must meet the following requirements: 1) the court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant; 2) the defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources; 3) and the program must submit regular reports to the court and counsel regarding the defendant’s progress in treatment. (Pen. Code, § 1001.36, subd. (f).) The court has the discretion to select the specific program of diversion for the defendant. The county is not required to create a mental health program for the purposes of diversion, and even if a county has existing mental health programs suitable for diversion, the particular program selected by the court must agree to receive the defendant for treatment. (Pen. Code, § 1001.36, subd. (f)(1)(A).)

The diversion program cannot last more than two years for a felony and cannot last for more than a year on a misdemeanor. (Pen. Code, § 1001.36, subd. (f)(1)(C).) If there is a request for victim restitution, the court shall conduct a hearing to determine whether restitution is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of restitution. (Pen. Code, § 1001.36, subd. (f)(1)(D).)

The stated purpose of the diversion program is “to promote all of the following: . . . Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.” (Pen. Code, § 1001.35, subd. (b).) The law states that courts have discretion to grant diversion if the minimum standards are met, and, correspondingly, refuse to grant diversion even though the defendant meets all of the requirements^[15]:

There may be times because of the defendant’s circumstances, where the interests of justice do not support diversion of the case. The defendant’s criminal or mental health history may reflect an unsuitability of the crime or the defendant for diversion. It may be that because of the defendant’s level of disability there is no reasonably available and suitable treatment program for the defendant. The defendant’s treatment history may indicate the prospect of successfully completing a program is quite poor. Conduct in prior diversion programs may indicate the defendant is now unsuitable. (See § 1001.36, subd. (k) [the court may consider past performance on diversion in determining suitability].) The court may consider whether the defendant and the community will be better served by the regimen of mental health court. (See §1001.36, subd. (f)(1)(A)(ii)) [the court may consider interests of the community in selecting a program].) The court is not limited to excluding persons only because of the risk of committing a “super strike.” (Qualkinbush, supra, 79 Cal.App.5th at pp. 888-889.) In exercising its discretion to grant or deny mental health diversion under subdivision (a), the court may consider any factor relevant to whether the defendant is suitable for diversion.4 (See Qualkinbush, supra, 79 Cal.App.5th at pp. 889-890.)

(J. Couzens, Memorandum RE: Mental Health Diversion (Penal Code §§ 1001.35-1001.36) (AB 1810 & SB 215) [revised] (May 2024), p. 4, fn. omitted.) While the court retains discretion to deny or grant diversion even where the defendant meets the threshold requirements for diversion (Pen. Code, § 1001.36, subd. (a)), this discretion must be exercised “consistent with the principles and purpose of the governing law.” (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892.)

In Sarmiento, the defendant requested mental health diversion after she was charged with attempted robbery. (Id. at p. 886.) Although the trial court found defendant met many of the requirements for diversion, it denied her request, finding her inability to remain drug free after prior treatment indicated she would not respond well to mental health treatment. (Id. at pp. 887, 890.) However, the undisputed evidence indicated the defendant never received any coordinated treatment for her two primary mental health diagnoses (PTSD and major depressive disorder from childhood sexual abuse), and the doctor’s report submitted in support of her request for diversion made clear that defendant was unable to remain sober because her underlying mental health conditions were never addressed. The prosecutor presented no evidence to the contrary. (Id. at pp. 887-889.) Thus, there was insufficient evidence to conclude defendant’s symptoms would not respond to treatment. The evidence was also insufficient to support the trial court’s finding that defendant’s recommended treatment plan would not meet her “specialized mental health treatment needs” (§ 1001.36, subd. (f)(1)(A)(i)) because she had a history of receiving prior substance abuse treatment and then reoffending. The court found that this does not rationally support a conclusion that mental health treatment coupled with substance abuse treatment would not be sufficient, and the alleged failure of prior drug treatment plans says nothing about the adequacy of the current proposed treatment plan. (Id. at p. 893-895.)

The trial court in Sarmiento also relied on its discretion to find that the defendant posed an “unreasonable risk to public safety,” although it recognized that the term was expressly defined in the statute to mean a likelihood that if the defendant is granted diversion, she will commit one of the enumerated “super strike” violent felonies. (Id. at 895.) The court did not make a finding of such a likelihood and instead relied purely on its discretion without any further analysis. (Ibid.) In defining the parameters of the court’s discretion, the court held:

[W]hile it is clear a trial court retains “residual” discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of “public safety” inconsistent with the specific statutory definition in section 1001.36, subdivision (c)(4). In the guise of exercising its “residual” discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature's expressed intent.

(Id. at p. 896.) Thus, when exercising its discretion to deny diversion, the court’s conclusion that a defendant is not suitable for diversion must be supported by substantial evidence based on the individual facts of the case. If the facts do not support such a conclusion, the court’s denial may be overturned under an abuse of discretion standard which is a deferential standard: “A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.” (Id. at pp. 901-901, citing People v. Moine (2021) 62 Cal.App.5th 440, 449.)

In other words, a court has discretion to deny diversion to a person even if person meets the threshold requirements of the statute, including being charged with a crime that is not otherwise statutorily excluded, however, the court’s conclusion that a person is not suitable for diversion must not be arbitrary or capricious and must be supported by substantial evidence.

1. Argument in Support: According to California State Sheriffs’ Association, the sponsor of this bill, “Existing law allows a court, when dealing with most crimes, to grant pretrial diversion to a defendant if the defendant has been diagnosed with a specified mental disorder and the defendant’s mental disorder was a significant factor in the commission of the charged offense. Existing law provides that a person charged with murder or voluntary manslaughter, a registerable sex offense, rape, lewd or lascivious act on a child under 14 years of age, assault with intent to commit a sex crime, rape in concert, continuous sexual abuse of a child, or use of a weapon of mass destruction is statutorily ineligible for mental health diversion.

“Despite the existence of several types of diversion programs, mental health diversion was recently created to specifically address defendants with mental health disorders. We understand the desire to support treatment of the mentally ill, but this program allows defendants to escape culpability based on a wide array of behavioral health diagnoses and is too limited in the manner in which it excludes people accused of very serious and violent crimes, including child abuse and other offenses resulting in great bodily injury.

“With the current pretrial mental health diversion program, so long as a defendant completes the program, the charge never goes on their criminal record. In such a case, it will be as if the arrest and proceedings never happened and cannot be used to deny a person employment, benefits, licenses, or certificates (e.g., teaching certificate, etc.), with very limited exception. This can obviously have considerable consequences to public safety and accountability, especially considering the broad spectrum of offenses that do not disqualify a defendant from seeking mental health diversion.”

1. Argument in Opposition: According to Smart Justice, “Under the current mental health diversion law, a court can only grant diversion if the accused person has been diagnosed with a mental disorder, that mental disorder was a significant factor in the commission of the charged offense, a treatment program is available, and the individual can be safely treated in the community. Before issuing such an order, courts are required to consider public safety, as well as the opinions of qualified mental health experts, in order to determine if a diversion grant is appropriate.

“AB 443 seeks to limit the discretion of judges to apply mental health diversion to candidates that are currently eligible. Current law never requires courts to grant diversion, it merely gives the court the ability, where appropriate, to use its informed discretion to divert mentally disordered people out of the criminal system and into the mental health treatment system.

“Mental Health Diversion has been extremely successful, reducing recidivism rates, lowering transfer rates to state hospitals, reconnecting families, and providing patients with the long-term support they need to restart their lives. Placing mentally ill people into treatment improves public safety for all. Sending mentally ill people to jail or prison leads to decompensation and re-offending, and creates additional challenges within the facility.”

1. Related Legislation:
   1. AB 46 (Nguyen), would make various changes to the Mental Health Diversion program including requiring a defendant to have been diagnosed with a mental health disorder within the prior 15 years in order for the presumption to apply that the defendant’s diagnosed mental disorder was a significant factor in the commission of the offense. AB 46 is pending hearing by this Committee.
   2. SB 483 (Stern), would add another suitability factor for granting mental health diversion, requiring the court be satisfied that the recommended mental health treatment program is consistent with the purpose of diversion and will meet the defendant’s specialized treatment needs. SB 483 is pending hearing in Senate Appropriations Committee.
      
2. Prior Legislation:
   1. AB 1412 (Hart), Chapter 687, Statutes of 2023, removed borderline personality disorder as an exclusion for mental health diversion.
   2. AB 1323 (Menjivar), Chapter 646, Statutes of 2024, require a court to determine whether the restoration of the defendant’s mental competence is in the interests of justice, and if it finds that it is not in the interests of justice, to hold a hearing to consider granting mental health diversion or other programs to the defendant.
      
   3. AB 455 (Quirk-Silva), Chapter 236, Statutes of 2023, authorizes the prosecution to request an order from the court to prohibit a defendant subject to pretrial diversion from owning or possessing a firearm because they are a danger to themselves or others until they successfully complete diversion or their firearm rights are restored.
   4. SB 1223 (Becker), Chapter 735, Statutes of 2022, added a presumption for purposes of mental health diversion eligibility that the defendant’s mental disorder was a significant factor in the commission of the offense which could be overcome by clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
   5. SB 666 (Stone), of the 2019-202 Legislative Session, would have added offenses which would preclude an individual from being eligible for mental health diversion. SB 666 was held in the Senate Public Safety Committee.
   6. SB 215 (Beall), Chapter 1005, Statutes of 2018, specified ineligible offenses for mental health diversion and required the court to determine whether restitution is owed to any victim of the diverted offense.
   7. AB 1810 (Committee on Budget), Chapter 34, Statutes of 2018, created mental health diversion in statute and specified that when a defendant is determined to be IST, the court can find that they are an appropriate candidate for mental health diversion.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California State Sheriffs' Association (Sponsor)
Arcadia Police Officers' Association
Association for Los Angeles Deputy Sheriffs (ALADS)
Brea Police Association
Burbank Police Officers' Association
California Association of School Police Chiefs
California Coalition of School Safety Professionals
California District Attorneys Association
California Narcotic Officers' Association
California Peace Officers Association
California Police Chiefs Association
California Reserve Peace Officers Association
Chief Probation Officers' of California (CPOC)
Child Abuse Prevention Center and its Affiliates Safe Kids California, Prevent Child Abuse California and the California Family Resource Association; the
Claremont Police Officers Association
Crime Victims United of California
Culver City Police Officers' Association
Fullerton Police Officers' Association
Los Angeles School Police Management Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Palos Verdes Police Officers Association
Peace Officers Research Association of California (PORAC)
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside County District Attorney
Riverside Police Officers Association
Riverside Sheriffs' Association
Sacramento County Probation Association
Sacramento County Sheriff Jim Cooper
San Diego County District Attorney's Office
Santa Ana Police Officers Association

Oppose

ACLU California Action
California Attorneys for Criminal Justice
California Public Defenders Association (CPDA)
Californians United for a Responsible Budget
County Behavioral Health Directors Association (CBHDA)
Ella Baker Center for Human Rights
Fair Chance Project
Friends Committee on Legislation of California
Initiate Justice
Initiate Justice Action
Justice2jobs Coalition
LA Defensa
Local 148 LA County Public Defenders Union
San Francisco Public Defender
Smart Justice California, a Project of Tides Advocacy
Universidad Popular
Vera Institute of Justice

Analysis Prepared by:

Stella Choe / PUB. S. / (916) 319-3744

1. Seth J. Prins, The Prevalence of Mental Illnesses in U.S. State Prisons: A Systemic Review (Jul. 2015). ↑

2. Stanford Justice Advocacy Project, Confronting California’s Continuing Prison Crisis: The Prevalence And Severity Of Mental Illness Among California Prisoners On The Rise https://law.stanford.edu/wp-content/uploads/2017/05/Stanford-Report-FINAL.pdf [accessed Feb. 26, 2025].) ↑

3. Id. at p. 2. ↑

4. Id. at p. 1. ↑

5. Hirschtritt & Binder, Interrupting the Mental Illness–Incarceration-Recidivism Cycle (Feb. 21, 2017) 317 JAMA 695-696, fn. omitted. ↑

6. Wik, A., Hollen, V., Fisher, W.H. (2017) Forensic Patients in State Psychiatric Hospitals: 1999-2016. ↑

7. See 24-25 Governor’s Budget Estimate: Department of State Hospitals (Jan. 10, 2025), p. 2. ↑

8. AB 133 (Committee on Budget), Chapter 143, Statutes of 2021. ↑

9. IST Solutions Workgroup Report of Recommended Solutions, A report of recommended solutions presented to the California Health and Human Services Agency and the California Department of Finance in Accordance with Section 4147 of the Welfare and Institutions Code (Nov. 2021) pp. 17-18. ↑

10. Id. at p. 11. ↑

11. Id. at p. 28. ↑

12. SB 1223 (Becker), Ch. 735, Stats. 2022. ↑

13. The Committee on the Revision of the Penal Code was established within the Law Review Commission through SB 94, Ch. 25, Stats. 2019 to study the Penal Code and recommend statutory reforms. ↑

14. Annual Report and Recommendations 2021, Committee on Revision of the Penal Code, http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2021.pdf, p. 17 (accessed Apr. 9, 2025). ↑

15. J. Couzens, Memorandum RE: Mental Health Diversion Under Penal Code Sections 1001.35-1001.36 [revised] (May 2024), p. 14. ↑