California just passed AB 46, a law that rewrites the rules for mental health diversion under Penal Code section 1001.36. With national statistics showing that 50% to 75% of all people in our criminal justice system suffer from significant mental health or substance abuse issues related to their crimes, this law could have massive, widespread implications.
Here’s the problem: there is a ton of misinformation out there. Even official published materials — including the digest published by the Legislative Counsel — get key details of this law wrong. AI-generated search summaries are telling people the law is effective immediately, which the text of the statute does not support.
My research attorneys and I spent the past week reading this law and breaking it down into its components, and I want to walk you through what AB 46 actually says, what it doesn’t say, and what it means for you or someone you love. Because if you get this wrong, one of two things happens. Either you decide the law doesn’t apply to you, you never pursue mental health diversion, and you end up with a conviction you shouldn’t have. Or you pursue diversion without understanding how the standard has changed, do the same tired old thing people have been doing for years, and get denied.
A Quick Refresher: What Is Mental Health Diversion?
Diversion is a legal alternative that allows people charged with misdemeanor or felony crimes to avoid incarceration and conviction in exchange for completing certain legal requirements — in this case, treatment.
It started with drug cases. As the drug epidemic consumed our neighborhoods and communities, we painfully realized we were incarcerating people who were sick — people suffering from a medical condition — instead of treating them. Drug court, recovery court, and deferred entry of judgment programs proved that treatment paired with accountability works, and California extended the model: military diversion for veterans under Penal Code section 1001.80, diversion for people with cognitive and developmental disabilities under section 1001.20, and programs for theft and youth offenders.
Then, about a decade ago, came the watershed: Penal Code sections 1001.35 and 1001.36 — mental health diversion. If you suffer from a qualifying mental health disorder (which includes substance use disorders), if that condition played a significant role in your offense, if you’re willing to participate in a court-approved treatment plan based on your individual needs, and if your participation won’t create an unreasonable risk to public safety, the court suspends your criminal process. Your case is frozen in time — up to two years on a felony, up to one year on a misdemeanor. You never plead guilty or no contest. Complete the program successfully, and you walk away with no conviction and no record — often having received real treatment for the first time in your life.
I’ve practiced criminal defense for twenty years, and our firm has shifted the majority of its resources toward this work for one simple reason: the results are unbelievable. I’ve had thousands of clients on probation, parole, and every form of supervision, and I have never seen recidivism rates as low as what we see with clients who complete mental health diversion. Publicly funded programs that track outcomes, like the Office of Diversion and Reentry in Los Angeles County, report the same pattern. People who are supervised, who get treatment, who get help — actually get better.
Myth #1: “Your Diagnosis Must Predate the Crime”
This is the big one, and it comes from an authoritative-sounding source. The Legislative Counsel’s Digest — the official summary published with the bill — says that a person’s diagnosis must have been obtained within five years prior to the offense.
That is simply not what the law says.
If it were true, it would be really, really restrictive. Because a lot of people suffering from mental health issues suffer in silence. Their loved ones know something is wrong, but often can’t get them help — despite many calls, despite attempted 5150 holds. I’ve worked with many families who, and it’s a horrible thing to say, were in some ways relieved when their loved one finally got arrested, because they had watched the person sliding and spinning out and couldn’t stop it. For a huge number of people, the formal diagnosis only comes after something terrible happens — after the arrest, after they’re stabilized, after a legal team working with mental health professionals finally figures out what’s actually going on. Suddenly everybody understands: Johnny is not just a bad kid. Johnny suffers from bipolar disorder with a comorbid substance use disorder. Now that we know what’s causing the moods, the instability, the behavior, we can address it.
Here’s what the statute actually says: if a person has been diagnosed with the condition within five years of the current offense, the court is required to find that the mental disorder was a significant factor in the commission of the offense — unless there is clear and convincing evidence that it did not motivate, cause, or contribute to the person’s involvement in the crime.
Within five years means within five years — five years before and five years after. The law does not require that the diagnosis predate the crime. It makes certain things easier to prove if it does, but it does not require it. Our firm has written to the Legislative Counsel asking them to correct the digest. In the meantime, don’t let a summary — official or otherwise — talk you out of rights the statute actually gives you.
One more detail almost everyone is neglecting: the statute says involvement in the current offense, not commission. Committing a crime and being involved in a crime are two different things, and this creates meaningful wiggle room for a person who is charged with a crime, obviously had something to do with it, but maintains they didn’t actually commit it. You don’t have to admit guilt. You don’t have to be found guilty. If you were involved in something you shouldn’t have been involved in, and a mental health condition played a role in it, you’re eligible.
Myth #2: “AB 46 Is Effective Immediately”
If you search AB 46 online, the AI summary at the top may tell you the law is effective immediately. It isn’t — at least, nothing in the statute says so.
For a California law to take effect immediately, it either has to say that in the text or pass as urgency legislation. We’ve dissected this statute every which way and compared it against genuine urgency legislation, including COVID-era emergency measures. There is simply nothing in the language that says it’s effective immediately, and nothing indicating urgency legislation. That means AB 46 follows the normal rule for laws signed mid-year without a specified effective date: it goes into effect January 1, 2027.
We’re not alone in this conclusion. District attorneys in multiple jurisdictions where we practice — including Santa Clara and Monterey counties — agree, and judges we’ve spoken with in different courthouses across different counties are saying the same thing.
Why does the date matter so much? Timing is strategy. Litigating a diversion motion now, under current law, is a completely different exercise than litigating it after January 1, 2027, under AB 46’s tighter standards. For some clients, the timing of the motion may be the single most consequential strategic decision in the entire case. Don’t hyperventilate because a chatbot told you the sky is falling — but don’t sit on your hands either.
What AB 46 Actually Changes
Mental health diversion survived. District attorneys, victims’ rights groups, and plenty of elected officials lobbied heavily for mental health diversion to be done away with entirely. If the Legislature had wanted to abolish it, they would have. They did not. Instead, they kept the program and imposed a strict, clear set of rules around it.
Judges must state reasons for denial on the record. The Legislature doesn’t want judges denying these motions simply because they’d rather see a conviction than treatment. Stated reasons mean appellate courts — the superior court’s appellate division on misdemeanors, the Court of Appeal on felonies — can review whether the law was applied correctly and whether the judge abused his or her discretion.
Eligibility (subdivision (b)). A person is eligible if diagnosed with a mental disorder identified in the Diagnostic and Statistical Manual of Mental Disorders — including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, PTSD, depression, anxiety, and borderline personality disorder. Antisocial personality disorder and pedophilia are excluded — sensibly, because otherwise the exception would swallow the rule — and most sex offenses remain categorically ineligible as a matter of public policy.
The five-year diagnosis presumption, discussed above.
The evidence courts can consider. How do you prove your disorder was a significant factor in the offense? The statute answers that too. In making this determination, the court may consider any relevant and credible evidence, including but not limited to: police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, and evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense. This last category is enormously important. The officer’s report describing erratic or bizarre behavior at the scene, body camera footage, witness accounts of a person who “hadn’t been themselves” for months, prior hospitalizations and 5150 holds, past treatment history — all of it is fair game. Even when the formal diagnosis comes after the arrest, evidence of what was actually happening to the person around the time of the offense often sits in the government’s own paperwork. Building a diversion motion means knowing how to find it and use it.
A qualified expert must vouch for the treatment plan (subdivision (c)(1)(A)). The court must now find, based on the opinion of a qualified mental health expert, that the proposed diversion plan is clinically appropriate to address the symptoms of the disorder that caused, contributed to, or motivated the charged offense. This is a huge change — and frankly, probably a necessary one. While many clients and treatment providers spend hours and thousands of dollars developing detailed, individualized treatment plans, courts have also seen people waving two-paragraph letters: “so-and-so is under my care, please let them participate in diversion.” That era is over. But the change cuts both ways. Judges who treat diversion motions like an Easter egg hunt — where every treatment plan you bring just generates demands for another one — no longer have that latitude. The statute now says exactly what suitability requires: a qualified expert’s opinion that the proposed plan is clinically appropriate. That’s the standard.
Consent and prospective compliance. The defendant must consent to diversion — we want people bought into their own treatment — with an exception for people who reach diversion as an alternative to competency restoration proceedings, which are burdensome, clumsy, and starved of state hospital resources. And the defendant must agree to comply with the proposed treatment. That word matters: the plan is prospective. A good plan your client agrees to follow satisfies the statute; prosecutors don’t get to nitpick how past treatment has gone.
A new public safety standard — the biggest practical change. The old law asked whether the person would pose an unreasonable risk of danger as defined in Penal Code section 1170.18 — the “super strike” standard. Unless the court found you were at risk of committing the worst of the worst offenses in California, you satisfied it. In practice, it was academic and impractical, and it produced ridiculous arguments — prosecutors making huge logical leaps from a diagnosis to a hypothetical catastrophe.
The new standard: the defense must show the defendant will not pose a substantial and undue risk to the physical safety of another person if treated in the community. The court may consider any factors it deems appropriate — the opinions of defense counsel, the district attorney, and qualified mental health experts; the treatment plan; the person’s violence and criminal history; the current charged offense — and must consider victims’ rights under Article I, Section 28 of the California Constitution.
Is that a tighter standard? Yes. Fewer people will qualify, especially those with serious or violent histories. But that shouldn’t deter anyone — it just means they have to work harder. If you’re asking a court to spare you both incarceration and a conviction, you should have to show you’re worthy of that consideration: not checking boxes, but genuinely engaging and changing your life.
The categorical exclusions remain. No diversion for murder, rape, child molestation, assault with intent to commit sexual crimes, continuous sexual abuse of a child, possession of weapons of mass destruction, and similar offenses — same as before.
What This Means If You’re Facing Charges
Don’t panic. Mental health diversion is still the law. The rules are clearer than they’ve ever been, and there’s real appellate oversight now. The five-year presumption — which includes diagnoses made after arrest — is a genuinely favorable provision that the official summary gets wrong. But the suitability and public safety standards are more demanding, and they will punish thin, hastily assembled treatment plans.
At Pernik Law, our approach has always anticipated the direction this law just took. We don’t file diversion motions cold. We get clients bought into their treatment early and established in it for months before we file. We retain qualified mental health experts who administer formal risk assessments, and we bring those scores and results to court as part of our motion. When we ask a judge to find that our client can be safely treated in the community, we can show it: they’re in treatment, they’re doing well in treatment, and as long as they stay in treatment, they’re not a danger to anyone.
Who is AB 46 going to hurt? People with lazy lawyers, and people who aren’t fully invested in their own treatment. If you start early, work hard, and are represented by counsel who reads the statute rather than the summary, you can absolutely still get diversion under AB 46.
Talk to Us
If you or someone you love is facing criminal charges connected to a mental health or substance abuse issue in Monterey, Santa Clara, Santa Cruz, San Benito, or San Mateo County, we can help you understand how AB 46 affects your case — and how to position it before and after January 1, 2027. Contact Pernik Law for a consultation.
This article is legal information and commentary, not legal advice. Every case is unique, and outcomes depend on specific facts. Consult a qualified criminal defense attorney about your situation.
