AB 46 authorizes California courts to grant discretionary pretrial diversion to defendants whose recent mental disorder significantly contributed to the charged offense. The bill defines eligibility and suitability tests (including a required expert diagnosis and demonstration that symptoms would respond to treatment), identifies excluded offenses, sets diversion length limits (felonies: 2 years; misdemeanors: 1 year), and preserves court discretion to deny diversion on public-safety grounds.
Beyond eligibility, AB 46 builds a practical framework: it requires treatment providers to report progress to courts, allows courts to order restitution but prohibits denial of diversion for inability to pay due to indigence or mental disorder, creates triggers for reinstating proceedings or referring for conservatorship, restricts downstream use of mental-health findings, and authorizes temporary firearm-prohibition orders subject to a clear-and-convincing burden on the prosecution. The bill will matter to defense counsel, prosecutors, trial courts, county mental-health agencies, and treatment providers because it converts clinical findings into procedural thresholds and creates monitoring and record-access obligations.
At a Glance
What It Does
Permits courts to grant pretrial diversion when a defendant has a qualifying mental disorder that significantly contributed to the offense and is likely to respond to treatment; requires a qualified mental health expert’s diagnosis and treatment opinion, sets procedural standards for evidence and hearings, and limits diversion length (felony: 2 years, misdemeanor: 1 year).
Who It Affects
Directly affects criminal defendants with recent qualifying mental health diagnoses, defense and prosecution teams who must litigate eligibility and suitability, courts that will supervise diversion and hearings, county mental-health agencies and private treatment providers asked to deliver and report services, and victims in restitution proceedings.
Why It Matters
The bill operationalizes mental-health diversion outside of competency-restoration channels, creating a routable alternative to prosecution for clinically eligible defendants while adding monitoring, record, and firearm-safety mechanisms that shift operational and evidentiary burdens onto courts, counties, and providers.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
AB 46 creates a stand-alone, discretionary pathway for pretrial mental-health diversion. To start, the defense must present a qualified mental health expert’s diagnosis or treatment documentation showing a qualifying disorder (bipolar, schizophrenia, PTSD and others listed by DSM, excluding antisocial personality disorder and pedophilia).
The statute requires the diagnosis or treatment within five years of the offense; when that timing is met, the bill instructs courts to presume the disorder was a significant factor in the offense unless the prosecution proves otherwise under the bill’s specified evidentiary language.
Suitability for diversion is a separate judicial determination. The court must find that a qualified expert believes the defendant’s symptoms would respond to the proposed treatment plan, that the defendant consents (or is an appropriate candidate despite incompetence under cross-referenced diversion-in-lieu-of-commitment provisions), and that the defendant will comply with treatment.
The court also must determine that the defendant will not pose an unreasonable risk to public safety if treated in the community, using the definition in Section 1170.18 and weighing opinions from the defense, prosecution, and experts plus the defendant’s criminal and violence history. Even where suitability criteria are met, the court retains discretion to deny diversion if it finds it more likely than not that community treatment would create an unreasonable risk.If diverted, the statute lets the court refer the defendant to inpatient or outpatient programs — public or private — but requires that any county agency or other program agrees to accept responsibility for treatment before the court approves it.
Treatment providers must send regular progress reports to the court, defense, and prosecution. Diversion is time-limited (felony up to two years, misdemeanor up to one year).
Courts can order restitution during diversion, but inability to pay because of indigence or mental disorder cannot be used to deny diversion or be held against compliance.AB 46 builds in checks: the prosecution can ask the court to reinstate proceedings or refer for conservatorship if the defendant commits certain new offenses, performs unsatisfactorily in treatment, becomes gravely disabled, or otherwise engages in criminal conduct making diversion inappropriate. On successful completion the court dismisses charges, the arrest is treated as never having occurred, and records are restricted; nevertheless, the Department of Justice may disclose the arrest to peace officer applicants and criminal-justice agencies retain access to sealed records in certain statutory circumstances.
The bill also limits use of mental-health findings created during diversion in other proceedings without consent, but it allows necessary access to medical records by county agencies, providers, the public guardian or conservator, and the court for treatment and monitoring. Finally, prosecutors may petition the court to temporarily prohibit 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.
The Five Things You Need to Know
Diagnosis window: the defendant must show a qualifying DSM-listed mental disorder with a diagnosis or treatment within the last five years; a qualified mental health expert can rely on records, exams, or other evidence.
Significance presumption: if the diagnosis is within five years, the court must find the disorder was a significant factor unless the prosecution overcomes that finding under the bill’s specified evidentiary standard.
Duration caps: diversion time is capped at two years for felonies and one year for misdemeanors; the court may order restitution during diversion but cannot deny diversion for inability to pay due to indigence or mental disorder.
Record and disclosure rules: successful completion treats the arrest as never having occurred and triggers restricted access to records, but DOJ disclosure to peace officer applicants and criminal-justice agency access to sealed records remain permitted under specified exceptions.
Firearm prohibition process: prosecution bears the burden, by clear and convincing evidence, to obtain a court order barring firearm possession during diversion and must show both significant danger and necessity because less-restrictive alternatives are inadequate.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Court discretion to grant pretrial diversion
This opening subsection makes diversion discretionary: courts may grant pretrial diversion for misdemeanors and felonies not excluded by (d), but only after considering defense and prosecution positions and applying the eligibility and suitability rules in (b) and (c). Practically, this places initial gatekeeping power with the trial court and embeds prosecutorial input into the decision without making diversion mandatory.
Eligibility — diagnosis and causal link
Subdivision (b) sets two bright-line eligibility gates. First, the defendant must present evidence of a qualifying mental disorder diagnosed or treated within five years; the defense bears the evidentiary burden to present that diagnosis via a qualified mental health expert who may use records, exams, or other materials. Second, the disorder must be shown to have been a significant factor in the charged offense; when the diagnosis is within five years the bill instructs courts to presume significance absent the prosecution meeting a stated evidentiary threshold. This scheme front-loads clinical proof into the pretrial record and forces the prosecution to rebut the causal link where recent diagnosis exists.
Suitability — treatment responsiveness, consent, and public-safety review
Subdivision (c) separates clinical suitability from eligibility: a qualified expert must opine that the defendant’s symptoms would respond to the proposed treatment. The defendant must consent and waive speedy trial unless incompetence makes that impossible and the defendant is otherwise an appropriate candidate under cross-referenced diversion-in-lieu-of-commitment provisions. The court must also determine that community treatment will not pose an unreasonable risk to public safety, using factors in 1170.18 plus opinions from counsel and experts and the defendant’s history. The subsection retains judicial discretion to deny diversion even where formal suitability criteria are met if the court finds community treatment likely creates an unreasonable risk.
Excluded offenses and preliminary showing
Subdivision (d) lists categorical exclusions — homicide, serious sexual offenses, registerable sex-offense convictions (except certain indecent-exposure charges), and defined sexual-abuse offenses — that make a defendant ineligible. Subdivision (e) allows an informal prima facie hearing at any stage to determine whether the defendant meets minimum eligibility and suitability thresholds; the court may rule on offers of proof and reliable hearsay, allowing early administrative screening without full evidentiary litigation.
Treatment program mechanics, reporting, and limits
This subsection defines pretrial diversion and supplies operational rules. The court must be satisfied the recommended inpatient or outpatient program meets the defendant’s specialized needs and that the treatment provider (public or private) has agreed to accept the defendant. Providers must send regular progress reports to the court, defense, and prosecutor. The statute caps diversion durations (two years for felonies, one year for misdemeanors) and permits courts to hear restitution claims during diversion while forbidding denial of diversion due to inability to pay from indigence or mental disorder. The subsection also defines who counts as a qualified mental health expert.
Triggers for reinstatement, conservatorship referral, and dismissal on completion
Subdivision (g) requires a court hearing to consider reinstating proceedings or modifying treatment when a defendant commits new offenses during diversion, is unsatisfactory in treatment, or becomes gravely disabled; it authorizes referral to conservatorship investigators in specified circumstances. Subdivision (h) describes successful completion consequences: the court dismisses the charges, the clerk files disposition records with DOJ, the arrest is to be treated as never occurring, and court-ordered access restrictions to those records apply (subject to specified exceptions).
Record use, privacy limits, and authorized access
These subsections protect participants by limiting use of diversion-related records: a record of a successful-diversion arrest or diversion participation cannot be used without consent in ways that would deny employment, benefits, or licenses, with enumerated exceptions. Notably, DOJ can disclose the arrest to peace-officer applicants and criminal-justice agencies may access sealed records under Section 851.92. The bill also limits using mental-health findings from diversion in other proceedings without consent unless admissible under constitutional standards, but it allows county agencies, providers, public guardians, and courts to access medical and psychological records during diversion for treatment and monitoring, to the extent federal law permits.
Temporary firearm-prohibition procedure
Subdivision (m) lets prosecutors request a court order barring firearm possession during diversion when they prove by clear and convincing evidence that the defendant poses a significant danger and that less-restrictive alternatives are inadequate. If the court grants the order, it remains in effect until successful completion of diversion or until the defendant’s firearm rights are otherwise restored under cross-referenced Welfare and Institutions Code provisions.
This bill is one of many.
Codify tracks hundreds of bills on Criminal Justice across all five countries.
Explore Criminal Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Defendants with recent qualifying mental-health diagnoses — the bill creates a procedural path to treatment in lieu of prosecution, possible dismissal on completion, and limits the downstream employment and licensing harms from diversion-related records.
- Defense counsel and public defenders — the statute provides a structured tool to negotiate treatment-based alternatives, including access to expert evaluations and an informal prima facie hearing to test eligibility early.
- Community treatment providers and collaborative courts — the bill creates referral channels and predictable reporting responsibilities (regular progress reports) and can bring sustained treatment funding through court referrals and private payments.
- Families and caregivers of defendants — diversion offers an alternative to incarceration that aligns criminal supervision with clinical treatment and can enable continuity of care and reduced exposure to correctional settings.
Who Bears the Cost
- County mental-health agencies and treatment providers — courts may refer defendants to county services but only if the agency agrees to accept responsibility; counties face capacity strain, reporting obligations, and potential fiscal pressure if services must be provided without commensurate funding.
- Trial courts and clerks — judges must adjudicate eligibility, suitability, reinstatement hearings, monitor provider reports, manage dismissal filings with DOJ, and enforce record-restriction orders, increasing administrative and adjudicative workload.
- Prosecutors — the bill shifts litigation burdens onto prosecutors to rebut the presumption that a recent diagnosis was a significant factor and to carry the clear-and-convincing burden for firearm-prohibition orders.
- Mental-health experts and private providers — experts’ opinions become gatekeeping evidence for diversion, increasing demand for forensic clinical evaluations and exposing providers to reporting and potential cross-examination obligations.
Key Issues
The Core Tension
The bill’s central dilemma is balancing rehabilitation and public safety: it seeks to divert clinically appropriate defendants into treatment (reducing incarceration and promoting recovery) while simultaneously protecting the public through suitability gates, reinstatement triggers, record- and firearm-related safeguards — but doing both requires clinical capacity, clear evidentiary rules, and careful coordination between criminal and civil mental-health systems, trade-offs that neither purely therapeutic nor purely punitive approaches fully resolve.
AB 46 threads clinical determinations into criminal-procedure pathways, but several implementation challenges are unresolved. First, the statute presumes significance of a recent diagnosis unless the prosecution meets a specified evidentiary phrase, which is atypical and ambiguous: the text requires a showing of a “preponderance of clear and convincing evidence” that the disorder was not a factor.
That hybrid language raises questions about the intended burden and could produce inconsistent appellate interpretations. Second, the bill depends on sufficient community treatment capacity.
Courts can only refer to county agencies or programs that agree to accept responsibility; in counties with limited inpatient or outpatient options this may produce geographic inequities or push defendants into privately funded care, raising access and fairness concerns.
Third, the statute balances confidentiality against monitoring and safety but leaves friction points. It restricts use of diversion-generated mental-health records in most contexts yet authorizes broad access to medical and psychological records by county agencies, providers, public guardians, and courts “to the extent not prohibited by federal law.” Those dual tracks create operational complexity for providers and counties trying to comply with HIPAA and state privacy rules.
Finally, the firearm-prohibition mechanism builds an important safety safeguard, but it shifts a high evidentiary burden to the prosecution and creates a parallel civil-criminal interface with Welfare and Institutions Code restoration procedures; courts will need to coordinate timelines and remedies carefully to avoid duplicative or contradictory orders.
Try it yourself.
Ask a question in plain English, or pick a topic below. Results in seconds.