San Jose Mental Health Diversion Attorney for AB 46

Lawyer Explaining How AB 46 May Affect Diversion Programs in Criminal Cases in San Jose, CA

In California, mental health diversion is an option in certain criminal cases that allows certain people to receive treatment and address the underlying causes of criminal behavior while avoiding convictions. California Penal Code section 1001.36 details the rules for how mental health diversion may be handled. In 2026, the California Legislature passed Assembly Bill 46, which made some changes to this statute, including adjustments to the standards followed by courts when determining whether to grant diversion.

While AB 46 did not eliminate mental health diversion, it has made changes to certain eligibility rules, and it also gives judges the authority to weigh concerns related to public safety when making decisions about whether diversion programs will be appropriate. People who may request diversion in a criminal case will need to understand how they may be affected by these changes.

At Fuller Law Firm, our attorney provides legal help to clients who are facing criminal charges, helping them determine whether they may qualify for diversion. He can make sure all legal issues that may affect diversion programs will be addressed correctly, including providing guidance on what information can be provided to show that a person qualifies for diversion and how to address potential safety concerns that may be raised during legal proceedings. His goal is to help clients resolve criminal cases while avoiding convictions whenever possible.

What AB 46 Has Changed About Mental Health Diversion

AB 46 was introduced in response to concerns raised by prosecutors and courts. They claimed that the statute did not provide judges with the ability to deny diversion if a person met the minimum criteria for a program. They raised concerns that people may be allowed to remain in their communities when they presented a risk to public safety. Rather than eliminating diversion, AB 46 clarifies certain issues while adding specific requirements that defendants will need to meet. The core changes include:

• A stricter timeframe for the underlying mental health diagnosis used to support a diversion request.
• A revised legal standard for evaluating whether treating a person in the community poses a safety risk.
• Expanded authority by courts to assess whether a proposed treatment plan is appropriate.
• A requirement to document the reasons for denying diversion requests.

Connections Between a Mental Health Diagnosis and a Criminal Offense

Previously, a defendant could show that they qualify for diversion by providing documentation of a mental health diagnosis from a qualified professional that connected their condition to criminal activity. Under AB 46, a diagnosis or a rediagnosis confirming a person's condition must take place within five years before the alleged offense.

This means that a diagnosis from many years earlier may no longer establish that a person is eligible for diversion unless a rediagnosis occurs within the appropriate timeframe. People with a history of mental health conditions who have had gaps in treatment or documentation may need to receive updated evaluations to ensure that they qualify for diversion.

A Revised Standard for Assessing Risk

Before AB 46, a court could base decisions about diversion on a mental health professional's assessment of whether the person would respond to treatment and would not put public safety at risk during a diversion program. AB 46 requires a court to determine whether a person could potentially be a risk to public safety. A court may deny a request for diversion if it determines that a person is likely to pose a substantial risk to people's physical safety while receiving treatment in the community.

This change gives judges more explicit authority to deny diversion if they believe that evidence shows that there is a genuine safety concern. This may result in closer scrutiny of a defendant's history, the nature of their alleged offense, and the proposed treatment plan before diversion will be granted.

Additional Review of Treatment Plans

AB 46 also gives courts the authority to evaluate whether a proposed plan for mental health treatment will be appropriate to address the specific symptoms connected to a criminal offense. Rather than accepting a treatment proposal at face value, courts may take steps to determine whether a plan will provide treatment that will reduce the likelihood that a person will commit criminal offenses in the future and whether it will protect the community from potential risks. Treatment plans submitted during diversion requests will need to directly address a person's diagnosis and the behavior connected to criminal charges.

How AB 46 May Affect People Facing Criminal Charges in San Jose

After the passage of AB 46, requests for diversion will need to include evidence supporting a treatment plan and showing that a person will be able to avoid criminal activity in the future. A request that is based on an old diagnosis, a treatment plan that is generic rather than being tailored to a specific offense, or safety concerns could lead to the denial of diversion. However, courts may grant diversion when all applicable requirements have been met, including providing evidence showing that treatment can be provided safely in the community.

Helps Clients Navigate Changes to Mental Health Diversion Laws

Our lawyer can provide clients with guidance on the requirements they will need to meet to receive diversion. He can work with qualified mental health providers to obtain timely diagnoses and build treatment plans that will withstand judicial review. He can also make sure any safety concerns raised by the court will be addressed correctly and advocate for solutions that will meet clients' needs.

Contact Our San Jose, California Mental Health Diversion Lawyer

While AB 46 has made some changes to the laws that apply in criminal cases involving mental health diversion, defendants will still have the option to participate in programs that will provide them with treatment and avoid criminal convictions. At Fuller Law Firm, our lawyer can build strong cases for diversion, working to ensure that clients will be able to resolve criminal cases successfully. Contact our San Jose mental health diversion attorney at 408-234-7563 to arrange a free consultation.