Bill ends free rides for defendants seeking mental health diversion
City News Service
RIVERSIDE (CNS) – Legislation backed by the Riverside County District Attorney’s Office to prevent potentially violent criminal offenders from exploiting courts’ mental health treatment allowances by using claims of psychiatric disorders to avoid incarceration is now enshrined in state law.
Gov. Gavin Newsom on Monday signed Assembly Bill 46, introduced by Assemblywoman Stephanie Nguyen, D-Sacramento, and sponsored by the California District Attorneys’ Association. It was immediately chaptered by the Office of the Secretary of State, becoming part of the state’s statutory scheme.
“Our office was proud to stand with the coalition of public safety advocates that worked for years to advance these important reforms,” Chief Deputy District Attorney Ivy Fitzpatrick said, adding that AB 46’s provisions will “better protect victims, support treatment and enhance public safety.”
Earlier this year, Riverside County District Attorney Mike Hestrin emphasized the need for changes to state law “after repeated tragic cases in which dangerous defendants committed new violent crimes while on mental health diversion.”
Diversion is permitted under Penal Code section 1001.36, which provides criteria for when an offender is eligible for mental health treatment in lieu of jail or prison. In recent years, a high volume of cases, ofteninvolving violence, have been removed from the criminal adjudication process in Riverside County and assigned to diversion.
The main requirement for judicial approval of diversion generally consists of affidavits from at least one mental health specialist affirming the defendant has a psychological disorder that likely contributed to perpetration of the crime. Additionally, the defendant, through his or her attorney, is supposed to submit a specific plan for treatment of the disorder, usually involving therapy.
However, even without a treatment plan, some judges have been subject to appellate review and invalidation of their decisions to reject diversion, according to supporters of AB 46.
The bill established a new standard that must be met before pretrial diversion can be permitted: “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community” and out of custody.
Judges will now be free to consult with prosecutors, defense attorneys, victims, as well as scrutinize a defendant’s criminal history, before making a decision on whether to grant psychiatric treatment.
In a 2024 case out of San Diego County, a judge attempted to squash diversion for a repeat criminal offender, Jeanette Sarmiento, who tried to rob a person but used a post-traumatic stress disorder diagnosis and other factors to argue that mental health diversion was a viable option in lieu of standardcriminal adjudication. But she did not come forward with a specific treatment plan. The California District Attorneys’ Association cited the case as an example of excessive leniency favoring an offender.
“The record showed that the defendant `for many years has been under the care of a psychiatrist or other physician and has been treated for PTSD and depression or has been offered treatment, and despite such treatment or offers, she continued to abuse methamphetamine and to commit crimes,”’ the CDAA stated.
The judge’s cancellation of diversion led the defendant to appeal, culminating in the state Court of Appeals for the Fourth District, a jurisdiction that includes Riverside County, countermanding the lower court judge’s decision and permitting Sarmiento to proceed with a non-specific diversion plan.
The CDAA cited multiple instances in which defendants placed in diversion had failed to curb their criminal conduct, sometimes with fatal results.
In Sacramento County, a defendant who perpetrated two takeover robberies in 2024 was nonetheless granted diversion, only to fatally stab a 40- year-old man, apparently without provocation, the organization said.
In Orange County, a defendant who served seven years behind bars for assault with a deadly weapon stabbed a pedestrian with a machete for no reason. After he was later granted diversion in that case disposed in Orange County Superior Court, “he absconded from his treatment program and stabbed another bystander 34 times with a box cutter in Los Angeles,” the CDAA said. That victim survived.
In Stanislaus County, a defendant granted diversion in a neighboring jurisdiction after he admitted carjacking a senior went on to use his vehicle to run over and kill his girlfriend — whom he was charged with assaulting on several prior occasions, according to the CDAA.
Defendants who complete diversion programs can still have their offenses expunged from criminal records.