AB 46 would narrow mental health diversion as Newsom nears

AB 46 – California’s pending Assembly Bill 46 would expand judges’ discretion to block mental health diversion, including cutting off eligibility for defendants charged with attempted murder. Supporters say it preserves treatment pathways while strengthening public-sa

In Los Angeles County, the man at the center of a family violence case is accused of escalating violence over more than a decade—first probation, then anger management, then repeated assaults that prosecutors say left his wife with extensive injuries, including, later, a coma.

The bill now moving toward Gov. Gavin Newsom aims to change how California decides whether people like Gilberto Guttierrez can take a mental health diversion off-ramp instead of going to prison.

Assembly Bill 46. authored by Stephanie Nguyen (D-Elk Grove). tightens the state’s mental health diversion rules for defendants whose alleged crimes are tied to mental illness. The measure gives judges broader discretion to decide who is eligible for diversion. Under current law, judges must presume mental illness was a factor if a defendant with a legitimate diagnosis seeks diversion. To defeat a diversion request. prosecutors bear the burden of proving mental health issues were not a factor in the alleged crime.

Under AB 46. judges could more easily block diversion if a defendant poses “a risk of danger to public safety.” That is a lower threshold than the “unreasonable risk” standard that was passed in 2018. Defendants charged with attempted murder would no longer be eligible for diversion under the new bill.

The bill’s path is already well advanced: it moved through the state Senate with no opposition last month, and it is expected to clear the reconciliation process in the Assembly this week, putting it close to the governor’s desk.

Nguyen framed the changes as a balance between access to treatment and stronger safeguards when safety is at stake. In a statement last month. she said. “AB 46 preserves diversion as an important pathway to care while ensuring judges have a clearer and more workable standard when serious public safety concerns are present.”.

If defendants successfully argue for pretrial mental health diversion under the existing system. they spend two years undergoing a court-appointed treatment plan instead of facing a conviction. Prosecutors have to prove the defendant is likely to commit a serious violent crime—described in the bill discussion as a so-called “super strike”—in order to block diversion.

Los Angeles County Dist. Atty. Nathan Hochman, who supported Nguyen’s bill, argued that the “super strike” standard is too difficult to overcome in practice. He pointed to the case of Guttierrez as an example of why the current approach can fail to account for danger.

“Hochman said the nearly impossible standard is best captured by the logic in the courtroom: ‘Guttierrez being your example: Judge. if you release him. he’s going to probably beat his wife up again. and if he does this time. he could kill her. But for the grace of God, he hasn’t killed her up until now,’” the bill record recounts. Hochman added that. because a judge granted diversion in Guttierrez’s case last July. “you have three little kids who likely won’t have their mom for the rest of their life.”.

A spokesperson for Newsom did not respond to a request for comment about the governor’s plans for the legislation.

Supporters say AB 46 is meant to address cases they believe show how diversion can be granted even when future harm seems foreseeable. They have described diversion as an off-ramp designed for defendants with serious psychological issues—offering treatment instead of a prison cell—and they argue the bill maintains that purpose while tightening eligibility when public safety concerns are real.

Proponents of more inclusive diversion policies also argue that many people with mental health issues remain trapped in California prisons and jails without getting the help they need. Yet the push for AB 46 comes as voters statewide have grown more skeptical of progressive criminal justice reforms.

The debate now hinges on how often the system is criticized for failing at the worst moments—and how courts and prosecutors should respond when the risk doesn’t look theoretical.

A 2020 Rand Corporation study found 61% of the nearly 5,500 mentally ill inmates housed in Los Angeles County at that time were “likely appropriate candidates” for diversion.

But pushback against the existing diversion law has intensified through accounts prosecutors say reflect deadly consequences. In a letter supporting Nguyen’s bill, the California District Attorneys Assn. cited cases in which they say the diversion framework produced tragic outcomes: a Sacramento case where a defendant stabbed a 40-year-old man to death after he was granted diversion in a robbery case; and a Santa Clara case where a woman on mental health diversion for carjacking proceeded to steal another car and slam it into an outside table at a restaurant. leaving one person dead and others injured.

Defense attorneys and some former prosecutors dispute that the most extreme anecdotes should drive policy. Nikhil Ramnaney. a former federal prosecutor now working as a defense attorney in Southern California. said thousands of people benefit from mental health diversion every year without reoffending. He criticized the bill’s supporters for emphasizing rare but horrifying cases.

“This is their most effective strategy because it works. Pick up the most visceral, outrageous anecdotes and then repeat them and amplify them as much as possible,” Ramnaney said. “That’s how we get bad policy.”

Defense attorney Alexandra Kazarian said California politicians are repeating what she described as an old cycle: when mental health is treated as a criminal justice problem first, the system simply trades one outcome for another.

“Without this option, you throw them into prison for a couple of years, they get out, and nothing changes. I’ve seen real change in my clients who have been granted these and who have just been on horrific mental health breaks and who. two years later. fully have their lives together. ” Kazarian said. “You’re always going to be able to find an outlier. You’re always going to be able to find somebody who ruins what is a great project or program.”.

Hochman described AB 46 as a “rebalancing” after years of efforts to reduce California’s overcrowded jail populations while considering public safety. He said he is not advocating for swings back and forth between competing goals.

“In the end, I’m not looking for pendulum swings,” he said. “I think we did have a pendulum swing when these laws were being passed and people weren’t really discussing. or at least understanding. the public safety impact of laws that seem on their surface to be very — I wouldn’t even use the word ‘progressive. ’ but very helpful to people who are suffering.”.

California Newsom AB 46 mental health diversion prison public safety Stephanie Nguyen Nathan Hochman Gilberto Guttierrez Alexandra Kazarian criminal justice reform