FCDA Calls for Reform of Mental Health Diversion Law Through Ab 46

Published on March 12, 2026

The Fresno County District Attorney’s Office is joining prosecutors across California in urging the Legislature to pass Assembly Bill 46, legislation aimed at addressing concerns with California’s mental health diversion law after cases across the state, including in Fresno County, have highlighted limits on judicial discretion and potential public safety risks.

Mental health diversion programs were created under California Penal Code §1001.36 to help individuals suffering from mental illness receive treatment instead of incarceration when appropriate. While treatment remains an important goal, prosecutors and courts across California have increasingly raised concerns that the law as currently written limits a judge’s ability to deny diversion even in cases involving serious violence or significant public safety concerns.

In Fresno County, prosecutors have encountered cases that illustrate how the current statute can restrict a court’s discretion.

In one pending case, a defendant previously admitted into mental health diversion for violently assaulting a public bus driver later completed the program. Several years later, that same individual is now charged with another violent assault involving hospital security personnel that left one victim unconscious with significant injuries. Despite the seriousness of the alleged conduct, the law significantly limits the ability of courts to deny diversion based on public safety concerns unless a defendant is likely to commit a violent offense.

In another recent Fresno County case, a man charged with discharging a firearm near a local high school after firing multiple rounds toward school property is seeking entry into the diversion program following a later diagnosis of schizophrenia. Prosecutors are opposing the request, but the current statute limits the ability of courts to consider broader public safety risks when determining whether diversion is appropriate.

Prosecutors across California have reported similar cases demonstrating the limitations of the current law; including in Fresno County, where a defendant now charged with attempted murder had previously been granted mental health diversion after earlier violent offenses.

Assembly Bill 46 seeks to address these concerns by restoring greater judicial discretion and allowing courts to consider whether a defendant poses a substantial and undue risk to the physical safety of another person when determining whether diversion is appropriate. The legislation would also allow courts to evaluate whether a proposed treatment plan is clinically appropriate to address the mental health condition that contributed to the offense.

Judges across California have increasingly expressed concern that California Penal Code §1001.36 significantly limits their discretion to deny diversion, even when serious safety concerns exist. Recent appellate court decisions have further narrowed that discretion, in some cases requiring courts to grant diversion even when a clear or specific treatment plan has not been identified.

Under current law, once a defendant meets certain statutory criteria, judges have very limited authority to deny diversion. Courts must apply a narrow definition of public safety risk that focuses primarily on the likelihood that a defendant will commit a small group of extremely serious offenses.

Additionally, if a defendant successfully completes diversion, the criminal case is dismissed, and the offense may be removed from the individual’s criminal history.

The Fresno County District Attorney’s Office is joining the California District Attorneys Association and prosecutors throughout the state in supporting the measure to ensure diversion programs remain focused on treatment while also allowing courts to protect community safety.

“Diversion programs can be an important tool for a certain population of people to ensure individuals suffering from legitimate mental illness receive treatment,” said Fresno County District Attorney Lisa Smittcamp. “But the law must also allow judges to consider the full circumstances of a case and protect public safety. Assembly Bill 46 restores that balance.”

Assembly Bill 46 will be heard in the California State Senate Public Safety Committee on March 17.

Members of the public can watch the hearing live beginning at 8:30 a.m.

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