Why Pending Mental Health Diversion Cases Should Move Forward Before California’s January 1, 2027 Changes

California’s mental health diversion program under Penal Code section 1001.36 has long provided a critical pathway for certain defendants whose mental disorders significantly contributed to the charged offense. When granted, diversion suspends criminal proceedings so the individual can participate in treatment. Successful completion can result in dismissal of the charges, avoiding a conviction and its lasting consequences.

That pathway is changing. Governor Gavin Newsom signed Assembly Bill 46 (AB 46) into law on June 29, 2026 (Chapter 18, Statutes of 2026). The new law takes effect on January 1, 2027. These reforms tighten eligibility criteria, raise the public-safety threshold courts must apply, and expand judicial discretion to deny diversion.

For individuals who may currently qualify, the time to pursue diversion is now, before the stricter standards take hold.

Key Changes Under AB 46

AB 46 amends Penal Code section 1001.36 in several important ways:

• Diagnosis timing. Evidence of a qualifying mental disorder must include a diagnosis or rediagnosis by a qualified mental health expert within five years before the alleged offense. This recency requirement strengthens the evidentiary foundation courts will demand. However, a defendant can legally use a formal diagnosis obtained after the alleged crime to apply for mental health diversion. The post-arrest evaluation must explicitly prove the underlying condition was active during the crime and caused the behavior, though it will face heightened skepticism from the prosecution and the court.
• Elevated public-safety standard. Courts must now find that the defendant will not pose a “substantial and undue risk to the physical safety of another person” if treated in the community. This replaces the prior, narrower standard focused on an “unreasonable risk of danger to public safety” (largely tied to the risk of committing a super-strike offense). Judges will evaluate a broader range of factors, including the defendant’s full criminal history, including prior convictions, arrests, parole or probation violations, past failures on diversion or supervision, and previous treatment efforts, along with the charged offense, the proposed treatment plan, and victims’ rights under Marsy’s Law.
• Clinically appropriate treatment plans. A qualified mental health expert’s opinion must specifically address whether the proposed diversion plan is clinically appropriate to treat the symptoms of the mental disorder that caused, contributed to, or motivated the offense.
• Explicit discretion and transparency. The statute reaffirms that diversion remains discretionary. If a court denies diversion, it must state its reasons on the record.

Certain serious offenses, including murder and specified sex offenses requiring registration, continue to render a defendant ineligible.

AB 46 preserves the core purpose of the program: connecting appropriate individuals with treatment, while giving courts clearer authority to prioritize public safety.

Why Immediate Action Matters

Until January 1, 2027, the current version of section 1001.36 remains in effect. That version contains a more limited public-safety inquiry and does not impose the same five-year diagnosis window or clinical-appropriateness requirements in the same form. Defendants who meet today’s eligibility and suitability criteria may find it more difficult, or in some cases impossible, to satisfy the post-January 1 standards.

Delays carry real risk. Court calendars, evaluation scheduling, expert reports, and negotiations with the prosecution all take time. A motion filed or heard under the current law may be decided under more favorable rules. Waiting until after the effective date could subject the same case to the heightened “substantial and undue risk” analysis, expanded consideration of criminal history and prior treatment failures, and stricter documentation demands.

Mental health diversion is not automatic under either version of the statute. Success still depends on a well-supported motion, credible expert evidence, a realistic treatment plan, and effective advocacy. The upcoming changes simply raise the bar.

Protecting Rights and Securing Better Outcomes

For many clients facing criminal charges complicated by mental health conditions, diversion offers a meaningful opportunity for treatment and a chance to resolve the case without a permanent criminal record. The window to pursue that opportunity under the existing framework is closing.

If you or a loved one is facing charges and mental health issues may have played a significant role, prompt evaluation of diversion eligibility is essential. An experienced mental health attorney can assess the facts under current law, gather the necessary medical and expert support, and present the strongest possible case while the more favorable standards remain available.

Lessem, Newstat & Tooson, LLP represents clients throughout Southern California in criminal defense matters, including those involving mental health considerations. Early consultation allows us to determine whether diversion is a viable path and to take the steps needed to protect your rights before the January 1, 2027 changes take effect.

The law is shifting. Acting with urgency can make a decisive difference.