AB 2273 (the “Scrivner Act”) adds a statutory pretrial diversion option for defendants who have been diagnosed with a qualifying mental disorder, allowing courts to postpone prosecution while the defendant undergoes court‑supervised mental health treatment. The bill sets out who can qualify, what a court must consider before granting diversion, and when diversion is unavailable.
The measure also creates operational rules: how treatment programs are selected and reported, limits on diversion duration, what happens after successful completion (dismissal and restricted access to arrest records), and narrow exceptions for disclosure (notably to peace‑officer applicants and certain criminal‑justice agencies). It includes a mechanism for prosecutors to seek a temporary prohibition on firearms during diversion, subject to a clear‑and‑convincing standard.
At a Glance
What It Does
Authorizes courts to grant pretrial diversion to defendants with a qualifying DSM mental disorder if the disorder significantly contributed to the charged conduct and the defendant is suitable for treatment in the community. The statute defines eligibility, imposes suitability criteria (including expert opinion and consent or competency exceptions), and prescribes program and reporting requirements for inpatient or outpatient treatment.
Who It Affects
Criminal defendants in California diagnosed with specified mental disorders, defense counsel and prosecutors who must litigate eligibility and suitability, county mental‑health agencies and treatment providers that may be asked to accept referrals, and courts responsible for monitoring diversion compliance. Victims and law‑enforcement entities are affected by the record‑sealing and disclosure carve‑outs.
Why It Matters
The bill embeds a treatment‑first pathway into California criminal procedure with statutory standards and presumptions, shifting some decisions now handled case‑by‑case into statutory law. That creates predictable legal tests for practitioners but also imposes procedural and resource demands on courts and community mental‑health systems.
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What This Bill Actually Does
AB 2273 creates a statutory route for pretrial diversion focused on mental‑health treatment. A court may grant diversion when the defendant meets two threshold requirements: (1) a qualifying diagnosis and supporting evidence from a qualified mental‑health expert, and (2) a showing that the disorder was a significant factor in the offense.
The bill allows the court to consider examinations, medical records, police reports and expert opinions in deciding whether the disorder influenced the conduct; it places the default toward finding the disorder was significant unless there is clear and convincing proof otherwise.
Once eligibility is established, the court must decide whether the defendant is suitable for diversion. Suitability turns on whether a qualified expert believes symptoms would respond to treatment, whether the defendant can (or, if incompetent, is otherwise appropriate to) consent and waive speedy trial rights, and whether the defendant will comply with treatment—subject to specified competency exceptions tied to existing restoration‑of‑competency pathways.
The court also must weigh public safety, factoring in criminal and violence history, the current offense, and the proposed treatment plan.The statute lays out how diversion operates in practice. Courts may refer defendants to existing inpatient or outpatient programs, public or private, and may only refer to county agencies that agree to accept responsibility.
Treatment providers must report progress to the court, defense, and prosecutor. Diversion duration is capped (shorter for misdemeanors than felonies), a restitution hearing is available during diversion if victims are owed compensation, and indigence or incapacity to pay cannot be a basis to deny diversion.At completion, satisfactory performance triggers dismissal of the charges and restricted access to the arrest record—though the bill expressly preserves certain disclosures: the Department of Justice may provide the arrest to peace‑officer applicants, criminal‑justice agencies may access sealed arrest information as currently allowed, and records created through diversion or treatment generally cannot be used in other proceedings without consent except where constitutional and evidentiary law permits.
The prosecution can also seek a temporary firearm prohibition during diversion, but must prove necessity and danger by clear and convincing evidence.
The Five Things You Need to Know
A qualified mental‑health expert must provide evidence of a diagnosis or treatment within the last five years to support eligibility.
The bill creates a rebuttable presumption that a diagnosed mental disorder was a significant factor in the alleged offense unless the prosecution proves otherwise by clear and convincing evidence.
Certain serious offenses—including murder, voluntary manslaughter, most offenses requiring sex‑offender registration, rape, and several child‑sexual‑abuse offenses—are categorically excluded from diversion; courts determine ineligibility by the alleged facts, not just the charged counts.
Diversion time is capped: no more than two years for felony charges and no more than one year for misdemeanors; providers must submit regular progress reports to the court and parties.
The prosecution may obtain a court order temporarily prohibiting firearm ownership during diversion, but must prove by clear and convincing evidence that the defendant poses a significant danger and that less restrictive alternatives are inadequate.
Section-by-Section Breakdown
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Court discretion to grant diversion
This subsection gives the court the discretionary authority to grant pretrial diversion on an accusatory pleading for eligible offenders, subject to consideration of the parties’ positions. Practically, that moves this decision into the judge’s discretion box but explicitly ties it to the specific eligibility and suitability rules that follow—so attorneys should prepare both factual and expert records for that discretionary hearing.
Eligibility: qualifying diagnosis and causal nexus
Subdivision (b) specifies the two threshold requirements: a qualifying DSM diagnosis (with recent evidence from a qualified expert) and a showing that the disorder was a significant factor in committing the offense. The diagnosis rule excludes antisocial personality disorder and pedophilia and permits experts to rely on records, exams, and arrest materials. Importantly, the statute instructs courts to presume the disorder was a significant factor once a diagnosis exists unless the prosecution rebuts that presumption by clear and convincing evidence—this is an evidentiary flip that will shape early litigation strategy and discovery needs.
Suitability: treatment response, consent, and public safety
Subdivision (c) lists four suitability criteria: expert opinion that symptoms will respond to treatment, the defendant’s consent and waiver of speedy trial (with statutory exceptions for incompetence tied to Sections 1370/1370.01), agreement to comply with treatment (with parallel competency exceptions), and a public‑safety assessment referencing Section 1170.18. These mechanics require coordination among defense experts, court evaluators, and services planners and create specific record topics (treatment plan, violence history) courts must weigh.
Categorical exclusions and factual‑basis ineligibility rule
Subdivision (d) lists offenses that are ineligible for diversion and establishes that ineligibility is determined from the underlying factual conduct articulated in charging documents, preliminary hearing transcripts, or police reports—not solely the formal charges. That means prosecutors can rely on the alleged facts to block diversion even where the charging instrument omits those offenses, and courts must parse the factual record for disqualifying conduct.
Operational definitions, treatment selection, reports, and time limits
Subdivision (f) defines ‘pretrial diversion’ and ‘qualified mental health expert,’ requires the court to be satisfied treatment will meet specialized needs, allows referral to existing public or private treatment resources (but only where the receiving agency agrees to accept responsibility), and requires providers to report progress to the court and parties. It also caps diversion duration (two years for felonies, one year for misdemeanors), authorizes restitution hearings during diversion, and bars denial for inability to pay restitution due to indigence or disorder—mechanics that directly affect program design and case management.
Reinstatement, modification, or conservatorship triggers
Subdivision (g) mandates a court hearing if specified deterioration or new criminality arises during diversion—additional violent misdemeanor, any new felony, criminal conduct rendering the defendant unsuitable, unsatisfactory program performance, or grave disability. The court can reinstate prosecution, modify treatment, or refer the defendant to conservatorship proceedings under the Welfare & Institutions Code. This gives courts a defined exit ramp from diversion when public safety concerns emerge.
Dismissal, record handling, and disclosure carve‑outs
Successful completion requires dismissal of the diverted charges and restricted access to the arrest record; the clerk must notify DOJ of the disposition. Yet the statute preserves two narrow disclosure points: peace‑officer applicants must still be truthfully informed about the underlying arrest, and criminal‑justice agencies retain access to sealed arrest information as currently allowed. The bill also limits use of diversion‑generated mental‑health records in other proceedings absent consent, except where constitutionally and evidentially admissible.
Temporary firearm prohibition during diversion
Subdivision (m) allows the prosecution to seek a court order banning the defendant from owning or possessing firearms during diversion if it proves by clear and convincing evidence that the defendant poses a significant danger and that no less restrictive alternative will protect public safety. If granted, the prohibition lasts until successful completion of diversion or until rights are restored per the Welfare & Institutions Code. This creates an in‑process firearm restriction tied to diversion status rather than conviction.
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Defendants with serious mental illness who would otherwise face traditional prosecution: they gain access to court‑supervised treatment and a path to dismissal and record restriction upon satisfactory completion, reducing collateral consequences of criminal conviction.
- Defense attorneys and public defenders: obtain a clear statutory mechanism and evidentiary standards to negotiate diversion for eligible clients and to secure treatment instead of incarceration.
- Community mental‑health providers and collaborative courts: receive structured referrals that can formalize funding streams and enhance engagement with justice‑involved individuals, when resources permit.
- Victims with restitution claims: have a statutory vehicle to request restitution hearings during diversion, enabling compensation while the defendant undergoes treatment.
Who Bears the Cost
- Prosecutors and district attorneys: must litigate presumption disputes and firearm‑prohibition hearings under a clear‑and‑convincing standard, increasing discovery and hearing demands.
- County mental‑health agencies and treatment providers: face intake and capacity pressures, and may be expected to accept referrals only when they agree to assume responsibility, potentially straining scarce resources.
- Trial courts and clerks: will absorb additional hearings—eligibility prima facie showings, suitability evaluations, progress monitoring, reinstatement hearings, and conservatorship referrals—without an express funding stream.
- Criminal‑justice agencies and peace‑officer employers: remain entitled to certain disclosures despite sealing, which preserves investigative and hiring uses but complicates defendants’ expectations of confidentiality.
Key Issues
The Core Tension
The central dilemma is balancing a treatment‑first approach for defendants with serious mental illness against public‑safety and accountability concerns: the statute lowers the barrier to diversion for diagnosed individuals but also asks courts, under resource and evidentiary constraints, to ensure community safety, protect victims’ restitution rights, and manage confidentiality and firearm risks—tradeoffs with no administratively clean solution.
The bill creates several hard implementation questions. First, the evidentiary presumption that a diagnosed disorder was a significant factor once a diagnosis is offered shifts the litigation burden toward the prosecution to disprove causation by clear and convincing evidence.
That may speed eligibility in many cases but will also generate early factual battles and secondary litigation over expert qualifications, records, and admissible materials. Defense counsel will rely heavily on expert reports; prosecutors will need investigative resources to rebut those reports—a dynamic likely to increase motion practice.
Second, the statute assumes available treatment capacity by permitting referrals to county agencies or existing programs only when those entities agree to accept responsibility. Many counties have limited inpatient or outpatient slots; the bill allows a written declaration of inability to serve, but that does not resolve the underlying problem of scarce services.
If counties decline referrals, courts will face the dilemma of whether to deny diversion on purely logistical grounds or to delay diversion while treatment resources are arranged. That friction could produce uneven access across counties.
Third, confidentiality and safety protections collide. The bill limits use of diversion‑related mental‑health records in other proceedings and restricts employment or benefits harms from diversion records, but it preserves DOJ disclosures to peace‑officer applicants and law‑enforcement access to sealed arrest information.
Combine that with the firearm‑prohibition process (which requires a clear‑and‑convincing showing by the prosecution), and you get multiple parallel processes—treatment monitoring, criminal prosecution, hiring background checks, and firearm rights adjudication—each with different standards and record access rules. Practitioners will need careful cross‑disciplinary planning to avoid inadvertent waiver, improper disclosure, or conflicting orders.
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