Diversion.
SB 1373
California Bills
20250SB__137396AMD INTRODUCED 2026-02-20 AMENDED_SENATE 2026-04-15 AMENDED_ASSEMBLY 2026-06-16 AMENDED_ASSEMBLY 2026-07-02 2025 SB AMD Introduced by Senator Grove (Coauthors: Senators Niello, Rubio, and Stern) (Coauthor: Assembly Member Krell) LEAD_AUTHOR SENATE Grove COAUTHOR SENATE Niello COAUTHOR SENATE Rubio COAUTHOR SENATE Stern COAUTHOR ASSEMBLY Krell
An act to amend
Section 1001.36 of the Penal Code, relating to diversion. diversion Diversion. Existing law authorizes the court to grant pretrial diversion to a defendant diagnosed with a mental disorder if the defendant satisfies certain eligibility requirements and if the court determines that the defendant is suitable for diversion.
Existing law provides that a defendant is eligible for diversion if they have been diagnosed with certain mental disorders and the court finds that the mental disorder was a significant factor in the commission of the charged offense, unless there is clear and convincing evidence that the disorder was not a motivating, causal, or contributing factor to the defendant’s involvement in the alleged offense.
Existing law excludes a defendant from diversion for specified charged offenses, including, among others, murder, voluntary manslaughter, rape, or continuous sexual abuse of a child, as specified.</xhtml:p><xhtml:p>This bill would require the court to find that the defendant’s mental disorder was a significant factor in the commission of the offense only if the mental disorder had been diagnosed or rediagnosed within years of the current offense.
The bill would add to the list of crimes for which a defendant is prohibited from being placed into a diversion program to include, among other things, human trafficking and child abuse, as specified.</xhtml:p><xhtml:p>Existing law makes a defendant suitable for this diversion program if, among other criteria, the defendant will not pose an unreasonable risk of danger to public safety if treated in the community, as specified.</xhtml:p><xhtml:p>The bill would instead make the defendant suitable for diversion if they do not pose a substantial and undue risk to the physical safety of another person and would add to the list of things the court may specifically consider in making that determination, including the defendant’s prior history in a pretrial diversion plan and the severity of injury to the victim.</xhtml:p>"?> Existing law authorizes a court to grant pretrial diversion to a defendant suffering from a mental disorder, on an accusatory pleading alleging the commission of a misdemeanor or felony offense, to allow the defendant to undergo mental health treatment.
Existing law prescribes specified criteria for a defendant to be eligible for pretrial diversion and for a court to consider whether the defendant is suitable for pretrial diversion. Existing law authorizes a court to require the defendant to make a prima facie showing that they will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion and authorizes the court, if that showing is not made, to summarily deny diversion and grant alternate relief.
This bill, if the court intends to summarily grant diversion or any other relief, would require the court to conduct an additional hearing if requested by either party. By increasing the duties on local prosecutors, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
MAJORITY NO YES YES NO NO NO NO NO NO NO The people of the State of California do enact as follows: <caml:Num>SECTION 1.</caml:Num><caml:ActionLine action="IS_AMENDED" xlink:href="urn:caml:codes:PEN:caml#xpointer(%2Fcaml%3ALawDoc%2Fcaml%3ACode%2Fcaml%3ALawHeading%5B%40type%3D'PART'%20and%20caml%3ANum%3D'2.'%5D%2Fcaml%3ALawHeading%5B%40type%3D'TITLE'%20and%20caml%3ANum%3D'6.'%5D%2Fcaml%3ALawHeading%5B%40type%3D'CHAPTER'%20and%20caml%3ANum%3D'2.8A.'%5D%2Fcaml%3ALawSection%5Bcaml%3ANum%3D'1001.36.'%5D)" xlink:label="fractionType: LAW_SECTION" xlink:type="locator">Section 1001.36 of the <caml:DocName>Penal Code</caml:DocName> is amended to read:</caml:ActionLine><caml:Fragment><caml:LawSection id="id_95ACE0C6-795F-4523-9D9A-415AC8D65692"><caml:Num>1001.36.</caml:Num><caml:LawSectionVersion id="id_220415FA-1745-4531-8D95-4393D99559DA"><caml:Content><xhtml:p>(a)<xhtml:span class="EnSpace"/>On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this
section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (
b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).</xhtml:p><xhtml:p>(b)<xhtml:span class="EnSpace"/>A defendant is eligible for pretrial diversion pursuant to this
section if both of the following criteria are met:</xhtml:p><xhtml:p>(1)<xhtml:span class="EnSpace"/>The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia.
Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.</xhtml:p><xhtml:p>(2)<xhtml:span class="EnSpace"/>The defendant’s mental disorder was a significant factor in the commission of the charged offense.
If the defendant has been diagnosed or rediagnosed with a mental disorder within five years of the current offense, based on the evidence offered in paragraph (1), the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.</xhtml:p><xhtml:p>(c)<xhtml:span class="EnSpace"/>For any defendant who satisfies the eligibility requirements in subdivision (b), the court shall consider whether the defendant is suitable for pretrial diversion.
A defendant is suitable for pretrial diversion if all of the following criteria are met:</xhtml:p><xhtml:p>(1)<xhtml:span class="EnSpace"/>In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.</xhtml:p><xhtml:p>(2)<xhtml:span class="EnSpace"/>The defendant consents to diversion and waives the defendant’s right to a speedy trial, or a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iii) of subparagraph (
B) of, or clause (
v) of subparagraph (C), of, paragraph (1) of subdivision (
a) of
Section 1370, or subparagraph (
A) of paragraph (1) of subdivision (
b) of
Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendant’s right to a speedy trial.</xhtml:p><xhtml:p>(3)<xhtml:span class="EnSpace"/>The defendant agrees to comply with treatment as a condition of diversion, or the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iii) of subparagraph (
B) of, or clause (
v) of subparagraph (
C) of, paragraph (1) of subdivision (
a) of
Section or subparagraph (
A) of paragraph (1) of subdivision (
b) of
Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot agree to comply with treatment.</xhtml:p><xhtml:p>(4)<xhtml:span class="EnSpace"/>The defendant will not pose a substantial and undue risk to the physical safety of another person if treated in the community.
The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s prior history in a pretrial diversion plan, the degree of danger posed to the community as evidenced by the defendant’s prior violence and criminal history, the current charged offense, the severity of injuries to victims, and any other factors that the court deems appropriate. The court shall consider the victim’s rights pursuant to subdivision (
b) or
Section of
Article I of the California Constitution.</xhtml:p><xhtml:p>(d)<xhtml:span class="EnSpace"/>A defendant shall not be placed into a diversion program, pursuant to this section, for the following current charged offenses:</xhtml:p><xhtml:p>(1)<xhtml:span class="EnSpace"/>Murder or voluntary manslaughter.</xhtml:p><xhtml:p>(2)<xhtml:span class="EnSpace"/>An offense for which a person, if convicted, would be required to register pursuant to
Section 290, except for a violation of
Section 314.</xhtml:p><xhtml:p>(3)<xhtml:span class="EnSpace"/>Rape.</xhtml:p><xhtml:p>(4)<xhtml:span class="EnSpace"/>Lewd or lascivious act on a child under years of age.</xhtml:p><xhtml:p>(5)<xhtml:span class="EnSpace"/>Assault with intent to commit rape, sodomy, or oral copulation, in violation of
Section 220.</xhtml:p><xhtml:p>(6)<xhtml:span class="EnSpace"/>Commission of rape or sexual penetration in concert with another person, in violation of
Section 264.1.</xhtml:p><xhtml:p>(7)<xhtml:span class="EnSpace"/>Continuous sexual abuse of a child, in violation of
Section 288.5.</xhtml:p><xhtml:p>(8)<xhtml:span class="EnSpace"/>A violation of subdivision (
b) or (
c) of
Section 11418.</xhtml:p><xhtml:p>(9)<xhtml:span class="EnSpace"/>Child abuse and endangerment, in violation of
Section 273a, if charged as a felony.</xhtml:p><xhtml:p>(10)<xhtml:span class="EnSpace"/>Assault of a child under eight years of age resulting in the death of the child, in violation of
Section 273ab.</xhtml:p><xhtml:p>(11)<xhtml:span class="EnSpace"/>Human trafficking, in violation of
Section 236.1.</xhtml:p><xhtml:p>(12)<xhtml:span class="EnSpace"/>Corporal injury, in violation of
Section 273.5, that causes great bodily injury.</xhtml:p><xhtml:p>(13)<xhtml:span class="EnSpace"/>Inflicting cruel or inhuman corporal punishment on a child resulting in an injury, in violation of
Section 273d, if charged as a felony.</xhtml:p><xhtml:p>(e)<xhtml:span class="EnSpace"/>At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel.
If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.
If the court intends to summarily grant diversion or any other relief, the court shall, if requested by either party, conduct an additional hearing.</xhtml:p><xhtml:p>(f)<xhtml:span class="EnSpace"/>As used in this chapter, the following terms have the following meanings:</xhtml:p><xhtml:p>(1)<xhtml:span class="EnSpace"/>“Pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:</xhtml:p><xhtml:p>(A)<xhtml:span class="EnSpace"/>(i)<xhtml:span class="EnSpace"/>The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.</xhtml:p><xhtml:p>(ii)<xhtml:span class="EnSpace"/>The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources.
Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community.
The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.</xhtml:p><xhtml:p>(iii)<xhtml:span class="EnSpace"/>If the court refers the defendant to a county mental health agency pursuant to this
section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony.
That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section.</xhtml:p><xhtml:p>(B)<xhtml:span class="EnSpace"/>The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.</xhtml:p><xhtml:p>(C)<xhtml:span class="EnSpace"/>The period during which criminal proceedings against the defendant may be diverted is limited as follows:</xhtml:p><xhtml:p>(i)<xhtml:span class="EnSpace"/>If the defendant is charged with a felony, the period shall be no longer than two years.</xhtml:p><xhtml:p>(ii)<xhtml:span class="EnSpace"/>If the defendant is charged with a misdemeanor, the period shall be no longer than one year.</xhtml:p><xhtml:p>(D)<xhtml:span class="EnSpace"/>Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (
f) of
Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.</xhtml:p><xhtml:p>(2)<xhtml:span class="EnSpace"/>“Qualified mental health expert” includes, but is not limited to, a psychiatrist, psychologist, a person described in
Section 5751.2 of the Welfare and Institutions Code, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert.</xhtml:p><xhtml:p>(g)<xhtml:span class="EnSpace"/>If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to
Chapter 3 (commencing with
Section 5350) of Part of Division of the Welfare and Institutions Code:</xhtml:p><xhtml:p>(1)<xhtml:span class="EnSpace"/>The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.</xhtml:p><xhtml:p>(2)<xhtml:span class="EnSpace"/>The defendant is charged with an additional felony allegedly committed during the pretrial diversion.</xhtml:p><xhtml:p>(3)<xhtml:span class="EnSpace"/>The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.</xhtml:p><xhtml:p>(4)<xhtml:span class="EnSpace"/>Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:</xhtml:p><xhtml:p>(A)<xhtml:span class="EnSpace"/>The defendant is performing unsatisfactorily in the assigned program.</xhtml:p><xhtml:p>(B)<xhtml:span class="EnSpace"/>The defendant is gravely disabled, as defined in subparagraph (
B) of paragraph (1) of subdivision (
h) of
Section of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.</xhtml:p><xhtml:p>(h)<xhtml:span class="EnSpace"/>If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.
A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section.
Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with
Section 1001.9, except as specified in subdivisions (
j) and (k).
The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).</xhtml:p><xhtml:p>(i)<xhtml:span class="EnSpace"/>A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.</xhtml:p><xhtml:p>(j)<xhtml:span class="EnSpace"/>The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:</xhtml:p><xhtml:p>(1)<xhtml:span class="EnSpace"/>The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (i), this
section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in
Section 830.</xhtml:p><xhtml:p>(2)<xhtml:span class="EnSpace"/>An order to seal records pertaining to an arrest made pursuant to this
section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in
Section 851.92.</xhtml:p><xhtml:p>(k)<xhtml:span class="EnSpace"/>A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, including, but not limited to, any finding that the defendant be prohibited from owning or controlling a firearm because they are a danger to themselves or others pursuant to subdivision (m), or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this
section or for use at a hearing on the defendant’s eligibility for diversion under this
section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (
f) of
Section of
Article I of the California Constitution.
However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.</xhtml:p><xhtml:p>(<xhtml:i>l</xhtml:i>)<xhtml:span class="EnSpace"/>The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.</xhtml:p><xhtml:p>(m)<xhtml:span class="EnSpace"/>(1)<xhtml:span class="EnSpace"/>The prosecution may request an order from the court that the defendant be prohibited from owning or possessing a firearm until they successfully complete diversion because they are a danger to themselves or others pursuant to subdivision (
i) of
Section of the Welfare and Institutions Code.</xhtml:p><xhtml:p>(2)<xhtml:span class="EnSpace"/>The prosecution shall bear the burden of proving, by clear and convincing evidence, both of the following are true:</xhtml:p><xhtml:p>(A)<xhtml:span class="EnSpace"/>The defendant poses a significant danger of causing personal injury to themselves or another by having in their custody or control, owning, purchasing, possessing, or receiving a firearm.</xhtml:p><xhtml:p>(B)<xhtml:span class="EnSpace"/>The prohibition is necessary to prevent personal injury to the defendant or any other person because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant.</xhtml:p><xhtml:p>(3)<xhtml:span class="EnSpace"/>(A)<xhtml:span class="EnSpace"/>If the court finds that the prosecution has not met that burden, the court shall not order that the person is prohibited from having, owning, purchasing, possessing, or receiving a firearm.</xhtml:p><xhtml:p>(B)<xhtml:span class="EnSpace"/>If the court finds that the prosecution has met the burden, the court shall order that the person is prohibited, and shall inform the person that they are prohibited, from owning or controlling a firearm until they successfully complete diversion because they are a danger to themselves or others.</xhtml:p><xhtml:p>(4)<xhtml:span class="EnSpace"/>An order imposed pursuant to this subdivision shall be in effect until the defendant has successfully completed diversion or until their firearm rights are restored pursuant to paragraph (4) of subdivision (
g) of
Section of the Welfare and Institutions Code.</xhtml:p></caml:Content></caml:LawSectionVersion></caml:LawSection></caml:Fragment></caml:BillSection>"?>
SECTION
Section 1001.36 of the Penal Code , as amended by
Section of
Chapter of the Statutes of 2026, is amended to read: 1001.36. (
a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this
section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (
b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c). Diversion pursuant to this
section is discretionary in all cases, when exercised consistent with subdivision (
b) or (c). (
b) A defendant is eligible for pretrial diversion pursuant to this
section if both of the following criteria are met:
(1) The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert.
In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.
(2) The defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed or rediagnosed with a mental disorder within five years of the current offense, based on the evidence offered in paragraph (1), the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense. (c)
(1) For any defendant who satisfies the eligibility requirements in subdivision (b), the court shall consider whether the defendant is suitable for pretrial diversion. A defendant is suitable for pretrial diversion if all of the following criteria are met: (
A) In the opinion of a qualified mental health expert, the proposed mental health diversion plan is clinically appropriate to address the symptoms of the defendant’s mental disorder that caused, contributed to, or motivated the charged offense. (
B) The defendant consents to diversion and waives the defendant’s right to a speedy trial, or a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iii) of subparagraph (
B) of, or clause (
v) of subparagraph (
C) of, paragraph (1) of subdivision (
a) of
Section or subparagraph (
A) of paragraph (1) of subdivision (
b) of
Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendant’s right to a speedy trial. (
C) The defendant agrees to comply with the proposed treatment as a condition of diversion, or the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iii) of subparagraph (
B) of, or clause (
v) of subparagraph (
C) of, paragraph (1) of subdivision (
a) of
Section or subparagraph (
A) of paragraph (1) of subdivision (
b) of
Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot agree to comply with treatment. (
D) The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community. The court may consider any factors that the court deems appropriate in making this determination, including, but not limited to, the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, and the current charged offense. The court shall consider the victim’s rights under subdivision (
b) of
Section of
Article I of the California Constitution.
(2) If the court denies diversion under this section, the court shall orally state the reasons on the record. (
d) A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(1) Murder or voluntary manslaughter.
(2) An offense for which a person, if convicted, would be required to register pursuant to
Section 290, except for a violation of
Section 314.
(3) Rape.
(4) Lewd or lascivious act on a child under years of age.
(5) Assault with intent to commit rape, sodomy, or oral copulation, in violation of
Section 220.
(6) Commission of rape or sexual penetration in concert with another person, in violation of
Section 264.1.
(7) Continuous sexual abuse of a child, in violation of
Section 288.5.
(8) A violation of subdivision (
b) or (
c) of
Section 11418. (
e) At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate. If the court intends to summarily grant diversion or any other relief, the court shall, if requested by either party, conduct an additional hearing. (
f) As used in this chapter, the following terms have the following meanings: (1) “Pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following: (A) (
i) The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant and the treatment is consistent with the underlying purpose of mental health diversion, as described in
Section 1001.35. (ii) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community.
The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services. (iii) If the court refers the defendant to a county mental health agency pursuant to this
section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony. That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section. (
B) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment. (
C) The period during which criminal proceedings against the defendant may be diverted is limited as follows: (
i) If the defendant is charged with a felony, the period shall be no longer than two years. (ii) If the defendant is charged with a misdemeanor, the period shall be no longer than one year. (
D) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (
f) of
Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion. (2) “Qualified mental health expert” includes, but is not limited to, a psychiatrist, psychologist, a person described in
Section 5751.2 of the Welfare and Institutions Code, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert. (
g) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to
Chapter 3 (commencing with
Section 5350) of Part of Division of the Welfare and Institutions Code:
(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.
(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3) The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.
(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists: (
A) The defendant is performing unsatisfactorily in the assigned program. (
B) The defendant is gravely disabled, as defined in subparagraph (
B) of paragraph (1) of subdivision (
h) of
Section of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding. (
h) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care.
If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with
Section 1001.9, except as specified in subdivisions (
j) and (k). The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j). (
i) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (
j) The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:
(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (i), this
section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in
Section 830.
(2) An order to seal records pertaining to an arrest made pursuant to this
section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in
Section 851.92. (
k) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, including, but not limited to, any finding that the defendant be prohibited from owning or controlling a firearm because they are a danger to themselves or others pursuant to subdivision (m), or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this
section or for use at a hearing on the defendant’s eligibility for diversion under this
section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (
f) of
Section of
Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section. (
l) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship. (m)
(1) The prosecution may request an order from the court that the defendant be prohibited from owning or possessing a firearm until they successfully complete diversion because they are a danger to themselves or others pursuant to subdivision (
i) of
Section of the Welfare and Institutions Code.
(2) The prosecution shall bear the burden of proving, by clear and convincing evidence, both of the following are true: (
A) The defendant poses a significant danger of causing personal injury to themselves or another by having in their custody or control, owning, purchasing, possessing, or receiving a firearm. (
B) The prohibition is necessary to prevent personal injury to the defendant or any other person because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant. (3) (
A) If the court finds that the prosecution has not met that burden, the court shall not order that the person is prohibited from having, owning, purchasing, possessing, or receiving a firearm. (
B) If the court finds that the prosecution has met the burden, the court shall order that the person is prohibited, and shall inform the person that they are prohibited, from owning or controlling a firearm until they successfully complete diversion because they are a danger to themselves or others.
(4) An order imposed pursuant to this subdivision shall be in effect until the defendant has successfully completed diversion or until their firearm rights are restored pursuant to paragraph (4) of subdivision (
g) of
Section of the Welfare and Institutions Code.
SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to