Bills would restrict who qualifies for mental health diversion

The Legislature passed the bill, and Gov. Gavin Newsom signed it into law in June.

“We want to see judges in California empowered by law to use their discretion when appropriate to deny mental health diversion to defendants seeking that program,” Garrett Hamilton, a deputy district attorney for the Yolo County District Attorney’s Office and a member of the California District Attorneys Association’s legislative committee, told The Center Square on Tuesday. “It’s almost impossible to keep defendants out of that program when they apply. It’s created an environment where judges don’t feel like they can deny it, even when they want to.”

Assemblymember Stephanie Nguyen, D-Elk Grove, who authored AB 46, was not available for an interview this week.

However, a similar bill, Senate Bill 1373, authored by Sen. Shannon Grove, R-Bakersfield, also aims to give judges more discretion over who qualifies for mental health diversion.

“Judges were saying they didn’t have discretion before, and that they would have to divert anybody to mental health diversion, which really is not good,” Grove told The Center Square. “After they completed their classes, there would be no evidence of them even having these crimes behind them, and it would be like a free wipe of their slate. These individuals who committed crimes against children could go and get jobs in a daycare facility.”

Grove’s bill was introduced in February with a press conference that featured speakers who advocated for reform to California’s mental health diversion program to keep violent offenders of crimes against children from walking away from their crimes after seeking mental health treatment. The state’s mental health diversion program was established in 2018 with Assembly Bill 1810. That bill aimed to give those with mental health problems the ability to seek treatment. Those who successfully completed treatment got their criminal charges dismissed under that law.

Grove pushed certain crimes to be excluded from a defendant's consideration for mental health diversion. These included child abuse and endangerment, killing a child age 8 or younger, as well as human trafficking and corporal injury.

Ultimately, amendments to the bill took out all these exclusions – a necessary step for the bill to move forward, Grove said.

“We didn’t want to a judge to have discretion. We wanted those things to go to court,” Grove told The Center Square on Monday. “We had to eliminate those, but we were able to keep the evidentiary hearing.”

The evidentiary hearing would allow both the prosecution and the defense to present evidence before a judge rules on a defendant's eligibility for mental health diversion, Grove said.

The next hearing for Grove’s bill is expected to be scheduled in August after the Legislature comes back from its summer break.

Officials with district attorney’s offices across the state told The Center Square on Tuesday that while Nguyen’s bill, AB 46, is not a perfect fix, it is much-welcomed legislation that allows judges more discretion to determine who would be a good fit for mental health diversion and who would just abuse it.

“The concern is that mental health diversion is misused,” Matthew Greco, San Diego County deputy district attorney and author of the California Criminal Mental Health Manual, told The Center Square. “It’s broken, and it incentivizes people whose crimes weren’t caused by their mental health to either fabricate mental health disorders or to use mental health disorders as an excuse.”

An official with the San Mateo County District Attorney’s Office, Chief Deputy Shin-Mee Chang, told The Center Square that she thought it was unfortunate that the list of ineligible crimes under AB 46 did not include some crimes such as attempted murder.

“So maybe SB 1373 will accomplish that, but it remains to be seen,” Chang said.

All of the sources interviewed by The Center Square said it was hard this early on to tell if either Nguyen’s bill or Grove’s bill would increase or decrease taxpayer costs. However, according to a bill analysis of AB 46, the bill could cause additional costs for courts because staff would need time to determine a defendant’s eligibility for mental health diversion. Those additional dollars could come from the state’s Trial Court Trust Fund or the state’s general fund.

None of the groups who registered opposition to Grove’s or Nguyen’s mental health diversion bills responded to The Center Square's request for comment on Tuesday.