AB 46: Diversion.

Existing law authorizes a court to grant pretrial diversion to a defendant suffering from a mental disorder, on an accusatory pleading alleging the commission of a misdemeanor or felony offense, in order to allow the defendant to undergo mental health treatment. Existing law provides that a defendant is eligible for diversion if they have been diagnosed with certain mental disorders and the court finds that the mental disorder was a significant factor in the commission of the charged offense, unless there is clear and convincing evidence that the disorder was not a motivating, causal, or contributing factor to the defendants involvement in the alleged offense. Existing law prohibits defendants charged with specified offenses, including murder, from being placed in this diversion program.

This bill would, if the defendant has been diagnosed with a mental disorder within 5 years of the current offense, as specified, require the court to find that the defendants mental disorder was a significant factor in the commission of the offense, unless there is a preponderance of evidence that it was not a motivating, causal, or contributing factor to the defendants involvement in would require that the diagnosis with a mental disorder be within 5 years before the alleged offense.

Existing law makes a defendant eligible suitable for this diversion program if, among other criteria, a qualified mental health expert opines that the defendants symptoms of the mental disorder that caused, contributed to, or motivated the criminal behavior, would respond to mental health treatment and the defendant will not pose an unreasonable risk of danger to public safety if treated in the community, as specified.

The bill would specify that a court retains discretion to deny diversion, even if a defendant is otherwise suitable for diversion, upon a finding that it is more likely than not that the defendant will pose an unreasonable risk to the physical safety of another person. revise that standard and instead require the court to find that the defendant will not pose a substantial and undue risk to the physical safety of another person if treated in the community. The bill would require the mental health experts opinion to include that the proposed mental health diversion plan is clinically appropriate to address the symptoms of the defendants mental disorder, as specified. The bill would require the court to state the reasons for denial on the record.