California’s mental health diversion law is changing on January 1, 2027.
Assembly Bill 46 (AB 46), signed into law by Governor Gavin Newsom on June 29, 2026, amends California Penal Code § 1001.36, the statute governing mental health diversion. The new law preserves mental health diversion but gives courts broader discretion to consider public safety, a defendant’s history, and the suitability of the proposed treatment plan.
For people facing criminal charges where mental health played a significant role, the change could be important. The legal standards that apply to a diversion request made after January 1, 2027, will not be identical to the standards currently in place.
If you or a loved one may qualify for mental health diversion, understanding AB 46 and California Penal Code § 1001.36 before the new law takes effect can help you understand what is changing and what information may become increasingly important in a diversion request.
What Is Mental Health Diversion in California?
California mental health diversion is a form of pretrial diversion that can allow an eligible defendant to participate in mental health treatment instead of proceeding immediately toward a criminal conviction.
Under Penal Code § 1001.36, certain defendants charged with misdemeanors or felonies may qualify when a qualifying mental disorder played a significant role in the alleged offense and the statutory requirements for diversion are satisfied.
Diversion does not simply mean that criminal charges disappear immediately. Instead, criminal proceedings are generally suspended while the defendant participates in an approved treatment program. If the defendant successfully completes diversion, the court can dismiss the charges under the statute.
California created the program in 2018 in part to provide treatment to appropriate defendants and reduce the likelihood that incarceration would aggravate an existing mental health condition.
But mental health diversion is not available for every criminal charge or every defendant. The statute contains specific eligibility requirements and exclusions.
That is where AB 46 becomes significant.
When Does AB 46 Take Effect?
AB 46 was signed into law on June 29, 2026, but the substantive changes to California’s mental health diversion law take effect January 1, 2027.
That means there is an important distinction between:
- The date AB 46 became law: June 29, 2026
- The date the new diversion rules take effect: January 1, 2027
Until the new law becomes operative, Penal Code § 1001.36 continues to govern diversion requests under the existing statutory framework.
The timing matters because the new law changes several aspects of the court’s analysis.
What Does AB 46 Change About Mental Health Diversion?
The most significant change involves the public-safety standard used when courts evaluate whether diversion is appropriate.
Under the current framework, the suitability analysis includes whether the defendant would pose an unreasonable risk of danger to public safety, with that determination tied to the statutory definition in Penal Code § 1170.18.
AB 46 changes that framework. Under the amended statute, the court will consider whether the defendant would pose a “substantial and undue risk to the physical safety of another person” if treated in the community.
The change gives judges a broader framework for considering public-safety concerns. The legislation also identifies factors that may be relevant to the court’s decision, including the charged offense, the proposed treatment plan, the defendant’s history, and other information relevant to the risk assessment.
In practical terms, the diversion hearing will involve more than simply establishing that a defendant has a qualifying mental health condition.
The court will also have greater authority to examine the full circumstances of the case.
Criminal History Will Matter Under the New Law
Another important aspect of AB 46 is the information a court may consider when evaluating public safety.
The new framework allows consideration of a defendant’s broader history, including matters such as prior convictions, arrests, probation or parole violations, previous failures on diversion or supervision, and prior treatment efforts.
This does not mean that someone with a prior criminal record is automatically disqualified from mental health diversion.
Instead, the amended statute gives the court more information to consider when deciding whether diversion is appropriate.
That distinction is important.
AB 46 does not eliminate mental health diversion in California, nor does it create a blanket prohibition based on a defendant’s criminal history. Rather, it changes the way courts can evaluate suitability and public safety.
Treatment Plans Will Receive Greater Scrutiny
AB 46 also places additional emphasis on the proposed treatment plan.
Under the amended law, the court can consider whether the proposed treatment plan is clinically appropriate to address the symptoms of the mental disorder that caused, contributed to, or motivated the alleged offense.
That makes the quality and specificity of a diversion treatment plan particularly important.
A general statement that someone needs “mental health treatment” may not provide the same level of information as a detailed plan identifying the individual’s diagnosis, symptoms, treatment needs, proposed services, and connection between treatment and the conduct underlying the criminal case.
The court may also consider whether appropriate treatment resources are actually available in the community.
For defendants seeking diversion after January 1, 2027, documentation and expert support may therefore play an increasingly important role.
The Five-Year Diagnosis Requirement
AB 46 also addresses the evidence used to establish a qualifying mental disorder.
The amended law provides a more specific temporal connection between the diagnosis and the alleged offense. Under the new framework, evidence of the qualifying mental disorder must include a diagnosis or rediagnosis by a qualified mental health expert within the five years preceding the alleged offense.
This does not necessarily mean that someone must have been diagnosed before the alleged offense.
Rather, the statute addresses the timeframe for the diagnosis or rediagnosis used to establish the qualifying condition.
For cases where mental health diversion may be an option, obtaining appropriate clinical documentation can therefore become an important part of preparing the case.
Judges Must Explain a Denial of Diversion
AB 46 also adds an important procedural safeguard: when a court denies diversion, the court must state its reasons on the record.
That requirement can provide greater transparency regarding why a diversion request was denied.
For defendants and attorneys, understanding the court’s stated reasoning can also be significant when determining what happened during the diversion hearing and whether the court applied the statutory requirements correctly.
The change reflects AB 46’s broader approach of giving judges greater discretion while establishing clearer standards for exercising that discretion.
Does AB 46 Eliminate California Mental Health Diversion?
No.
This is one of the most important points to understand.
AB 46 does not repeal Penal Code § 1001.36 or eliminate mental health diversion.
The program remains available to qualifying defendants. The legislation instead changes the standards courts use when determining whether diversion is appropriate.
Certain serious offenses also remain excluded from mental health diversion under the statute, including murder and specified sex offenses requiring registration.
The result is a diversion system that continues to offer treatment as an alternative to traditional criminal proceedings while giving courts additional authority to evaluate public-safety concerns.
What Does AB 46 Mean for Pending Criminal Cases?
The answer will depend on the individual case, including the charges, procedural posture, timing of the diversion request, and applicable law.
But one thing is clear: January 1, 2027, is an important date for California mental health diversion.
Someone who is considering diversion should not assume that the rules will remain unchanged.
A diversion request generally requires more than identifying a mental health diagnosis. The defense must establish the statutory requirements and present evidence supporting the proposed treatment approach.
For cases approaching the January 1, 2027 transition, attorneys may need to evaluate the timing of a diversion request, obtain appropriate mental health evaluations, develop a detailed treatment plan, and assess how the defendant’s history may be considered under the amended statute.
What Should Defendants and Families Do Now?
If mental health diversion may be appropriate in a California criminal case, early evaluation can be important.
Consider gathering:
- Records documenting mental health diagnoses and treatment;
- Evaluations from qualified mental health professionals;
- Information connecting the mental health condition to the alleged offense;
- A specific and realistic treatment plan;
- Documentation showing prior treatment efforts and progress;
- Information addressing potential public-safety concerns; and
- Records relating to prior criminal cases, probation, diversion, or treatment.
These materials can help an attorney determine how the case fits within the current version of Penal Code § 1001.36 and how it may be affected by AB 46.
Because the law changes January 1, 2027, defendants should not assume that an analysis performed under today’s law will necessarily produce the same result under the amended statute.
The Bottom Line on AB 46 and California Mental Health Diversion
California mental health diversion is not going away. But the rules governing it are changing.
AB 46, which becomes effective January 1, 2027, amends Penal Code § 1001.36 and gives courts broader authority to consider public safety, criminal history, treatment plans, and other circumstances when deciding whether diversion is appropriate. It also establishes additional requirements concerning diagnosis evidence and requires courts to state their reasons when denying diversion.
For defendants whose criminal cases are connected to mental health conditions, the upcoming changes make it especially important to understand the law before making assumptions about eligibility.
Mental health diversion can be a complicated area of California criminal law. Eligibility depends on the specific facts, charges, diagnosis, treatment plan, and procedural circumstances of the case.
If you believe you or a family member may qualify for mental health diversion under California Penal Code § 1001.36, speaking with a California criminal defense attorney at Wegman & Levin APC about the current law (and the January 1, 2027 changes) can help you understand how AB 46 may affect the case. Call us at (818) 495-8330 for a free, confidential consultation.
This article provides general legal information and is not legal advice. California diversion law is fact-specific, and the application of AB 46 may depend on the circumstances and procedural status of an individual case.
