offramp

A bill to tighten California’s rules on mental health diversion — a process that allows certain criminal defendants to avoid prison for arrests linked to mental illness — is now on the verge of being signed into law by Gov. Gavin Newsom.

Assembly Bill 46, authored by Stephanie Nguyen (D-Elk Grove), gives judges much wider discretion to decide whether a defendant should be eligible for diversion. Under the current law, judges must presume mental illness was a factor if a defendant with a legitimate diagnosis seeks diversion. In order to defeat a diversion request, the burden is on prosecutors to prove mental health issues were not a factor in the alleged crime.

The new measure — which moved through the state Senate with no opposition last month and is expected to clear the reconciliation process in the Assembly this week — also gives judges more latitude to block diversion if a defendant poses “a risk of danger to public safety,” as opposed to the higher “unreasonable risk” standard that was passed in 2018. Defendants charged with attempted murder will no longer be eligible for diversion under the new bill.

Proponents of more inclusive diversion policies argue that many people with mental health issues are locked up in California prisons and jails, where they are unable to receive the help they need.

The pending bill’s supporters say its changes are designed to address cases like that of Gilberto Guttierrez, a Los Angeles County man who has been accused of attacking his wife four times over the last 12 years.

In 2014, a misdemeanor domestic violence allegation landed Guttierrez on probation. Three years later, Guttierrez was ordered to take anger management classes after prosecutors brought felony domestic violence charges against him. Last February, prosecutors allege, he carried out a “brutal attack” on his wife with a glass bottle, leaving her with “extensive injuries,” according to a motion filed in his current criminal case. That time, the court filings show, Guttierrez threatened to kill her.

Despite objections from prosecutors and L.A. County probation officials, a judge granted a request to give Guttierrez mental health diversion last July.

A month later, prosecutors allege, he beat his wife until she fell into a coma.

When it passed in 2018, the original mental health diversion law was heralded as a needed off-ramp for defendants suffering from serious psychological issues — offering treatment to those who need it rather than a prison cell. But with voters statewide souring on progressive criminal justice reforms, lawmakers have sought to make it harder for defendants to qualify.

“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,” Nguyen said in a statement last month.

Under the existing rules, defendants who successfully argue for pretrial mental health diversion spend two years undergoing a court-appointed treatment plan instead of facing a conviction. Prosecutors must prove the defendant is likely to commit a serious violent crime, a so-called “super strike,” again in order to block diversion.

Los Angeles County Dist. Atty. Nathan Hochman, one of many prosecutors statewide who supported Nguyen’s bill, said that has been a nearly impossible standard to overcome.

“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,” Hochman said.

He added that due to the judge’s decision to grant diversion in Guttierrez’s case, “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 his plans for the legislation.

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 a number of troubling incidents have led to pushback against the existing diversion law.

In a letter supporting Nguyen’s bill, the California District Attorneys Assn. rattled off a list of cases in which prosecutors say the law’s shortcomings had deadly consequences. They pointed to a case in Sacramento where a defendant stabbed a 40-year-old man to death after he was granted diversion in a robbery case. In Santa Clara, the letter said, 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.

Nikhil Ramnaney, a former federal prosecutor who now works as a defense attorney in Southern California, said thousands of people benefit from mental health diversion every year without reoffending and chastised the bill’s supporters for cherry-picking horrible — but rare — cases to muster support for their proposal.

“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,” he said. “That’s how we get bad policy.”

Defense attorney Alexandra Kazarian said California politicians are repeating age-old mistakes of trying to arrest their way out of a mental health crisis.

“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,” she 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 said the modified mental health diversion law is a “rebalancing” of the scales in California after years of attempts to lower the state’s overcrowded jail populations affected public safety.

“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.”