California Assembly Bill 46 would tighten the rules for pretrial mental health diversion under Penal Code 1001.36, making it harder for defendants with psychiatric conditions to have their criminal cases paused for treatment. The bill lowers the evidentiary standard prosecutors must meet to block diversion, broadens what counts as a public safety risk, ties the presumption of a mental-health connection to a diagnosis from before the alleged offense, and adds attempted murder to the offenses that categorically disqualify a defendant. If you or someone close to you is facing charges and hoping diversion is on the table, these changes decide whether it still is.
How Diversion Works Today
Penal Code 1001.36 lets a judge pause a criminal case and send the defendant into mental health treatment instead of continuing with prosecution. Complete the program, and the charges are dismissed and the arrest record sealed. Fail to comply, and the case picks back up where it stopped. Diversion is available for both misdemeanors and felonies, with a treatment cap of one year for misdemeanors and two years for felonies.1California Legislative Information. California Penal Code 1001.36
Two threshold requirements govern eligibility. The defense has to show the defendant has a qualifying DSM diagnosis (bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD are common examples; antisocial personality disorder and pedophilia are excluded). And the court has to find the disorder was a significant factor in the offense. Under current law, a qualifying diagnosis triggers a presumption that the disorder was a significant factor, and prosecutors can rebut that presumption only with clear and convincing evidence.1California Legislative Information. California Penal Code 1001.36 That is a high bar, and AB 46’s central move is to lower it.
A Lower Burden of Proof for Prosecutors
The most consequential change in AB 46 is to the evidentiary standard for rebutting the presumption. Clear and convincing evidence would drop to a preponderance of the evidence, meaning simply more likely than not.2Digital Democracy. California AB-46 – Diversion Clear and convincing evidence requires a high degree of certainty; preponderance just tips the scale past fifty percent. Cases where prosecutors previously could not block diversion may fall on the other side of the line under the new standard.
A Five-Year Diagnosis Requirement Tied to the Presumption
AB 46 would require that the defendant’s diagnosis come from within five years before the alleged offense for the presumption of a connection to apply.2Digital Democracy. California AB-46 – Diversion Current law already references a five-year window for diagnosis or treatment, but AB 46 tightens how that window interacts with the presumption in the defendant’s favor. The California Public Defenders Association and other opponents argue this disadvantages people whose first serious contact with the mental health system comes through their arrest, because without prior paperwork, the presumption never kicks in.3California State Senate. Senate Committee on Public Safety Analysis of Assembly Bill 46
A Broader Public Safety Standard
Right now, a court can deny diversion on public safety grounds only if the defendant poses an “unreasonable risk of danger to public safety” as defined by Penal Code 1170.18, which essentially means a risk of committing a super-strike offense like murder or a sexually violent crime.1California Legislative Information. California Penal Code 1001.36 AB 46 replaces that with a broader test: the court has to find the defendant will not “endanger public safety,” defined as a likelihood that community treatment would result in physical injury or other serious danger to others.3California State Senate. Senate Committee on Public Safety Analysis of Assembly Bill 46 That is a wider net, and it gives judges more room to deny diversion based on risk that falls short of a super-strike category.
The bill also directs courts to consider the victim’s rights under Marsy’s Law when deciding whether to grant diversion.3California State Senate. Senate Committee on Public Safety Analysis of Assembly Bill 46
A Stricter Expert Opinion Requirement
Current law requires the mental health expert to opine that the defendant’s symptoms would respond to treatment. AB 46 adds a further requirement: the expert must state that the proposed diversion plan is “clinically appropriate” to address those symptoms.2Digital Democracy. California AB-46 – Diversion The opinion has to attach to the specific plan on the table, not just to the general prospect of treatment.
New Excluded Diagnoses and Offenses
AB 46 adds conduct disorder that involves threats of physical harm to people or animals to the list of diagnoses that do not qualify for diversion. On the charge side, it adds attempted murder to the categorically disqualifying offenses, which already include murder and voluntary manslaughter, most offenses requiring sex offender registration, rape, lewd acts on a child under 14, and use of a weapon of mass destruction, among others.4LegiScan. Bill Text CA AB46 2025-2026 Regular Session Amended1California Legislative Information. California Penal Code 1001.36 A defendant charged with attempted murder would be ineligible no matter how strong the link between a mental disorder and the alleged conduct.
Firearm Restrictions After Diversion
AB 46 also spells out the burden for firearm prohibitions on defendants who complete diversion. If the prosecution wants to bar a diverted defendant from possessing firearms, it has to prove two things by clear and convincing evidence: that the defendant poses a significant danger of causing injury by possessing a firearm, and that the prohibition is necessary because less restrictive alternatives have already been tried or would be inadequate.4LegiScan. Bill Text CA AB46 2025-2026 Regular Session Amended The burden sits with the prosecution rather than the defendant.
Who Is Arguing For and Against
The California Public Defenders Association and allied groups have opposed the bill, arguing that the cumulative effect of the changes would effectively eliminate mental health diversion as a practical option. They say the prior-diagnosis rule favors people with the resources to see therapists and doctors, and that if narrowed eligibility blocks diversion for defendants found incompetent to stand trial, those defendants will instead wait in county jails, sometimes for months, for a state hospital bed.3California State Senate. Senate Committee on Public Safety Analysis of Assembly Bill 46
Supporters frame the changes as public safety measures, pointing to the broader endangerment standard and the Marsy’s Law reference as ways to give courts more room to weigh community safety and victims’ interests before sending a defendant into community treatment.
What This Means If You’re Facing Charges
If your case is proceeding under the current version of Penal Code 1001.36, the presumption still works in your favor once you show a qualifying diagnosis, and prosecutors still have to clear the clear-and-convincing bar to rebut it. If AB 46 becomes law, expect three practical shifts: prosecutors will contest the connection between diagnosis and offense more often and more successfully, courts will look harder at any indication a defendant could injure someone in the community, and defendants without a documented psychiatric history from before the alleged offense will have a harder time triggering the presumption at all. Attempted murder charges move off the table entirely.