Bipartisan support from legislators helped push a new directive forward that changes how courts throughout California decide whether to grant criminal offenders diagnosed with a mental illness a treatment-based alternative to jail time.
Recently signed into state law, California Assembly Bill 46 redefines a judge’s discretion when considering a defendant’s application for mental health diversion.
In Gov. Gavin Newsom’s words, AB 46 essentially “removes a narrow legal standard that restricted court’s abilities to deny diversion,” he stated in late June after signing the bill.
That standard, enacted in 2018, directed court judges to reject a diversion request when the applying offender poses an unreasonable risk of committing a “super strike” offense, such as murder or rape.
The new bill strikes out that language and instead asks judges to consider any “substantial and undue risk to the physical safety of another person” when reviewing a diversion application.
“This is real muddy,” Santa Barbara County Senior Deputy Public Defender Erica Sutherland told the Sun. “A substantial and undue risk? What is that? How is that defined? … It’s super vague, so this is how district attorneys are going to jump over every single case.”
Before the law was passed, AB 46’s opponents included the California Public Defenders Association and the American Civil Liberties Union, while district attorneys across the state, including Santa Barbara County’s, favored the legislation.
“The modifications will give [prosecutors] more teeth to persuade a court to deny diversion, which I think is counter to a shared goal of public safety,” Sutherland said. “When mental health illness is the motivating factor behind a criminal act, and if you can address the mental health illness, you can prevent recidivism.”
Diversion cases with local ties include the 18-month residential treatment program former Orcutt resident Rockie Daren Ginter—represented by Sutherland in court—is currently completing at the Los Angeles Transition Center.
‘If he just took their deal, he’d be out. He’d be done. But instead, he wants diversion so passionately that he is sitting in jail while we fight for it.’
—Santa Barbara County Senior Deputy Public Defender Erica Sutherland
Santa Barbara County Superior Court Judge Denise M. Hippach granted Ginter diversion during pre-trial proceedings that followed his arrest in 2024 for alleged arson, while deeming his symptoms at the time of the offense consistent with schizophrenia.
As part of his ongoing treatment plan, Ginter needs to attend mental health court hearings every other month to assure the court and the public of his compliance. If caught deviating from the program or his prescribed medications, his arson charge would be reinstated and “the case goes forward,” Sutherland said.
“There’s tons of hoops they have to jump through, and they have to work with mental health professionals the entire time,” she said about those who are granted diversion. “If they mess up at any time, then diversion gets revoked and they go back to the trial department.”
Ginter’s last mental health court hearing took place on July 16. His next is scheduled for September.
“He’s doing great. He’s in full compliance,” Sutherland said. “He’s in court all of the time, every other month. That’s intensive [and] significantly more rigorous than your standard probation.”
Santa Barbara County District Attorney John Savrnoch was vocal about his opposition to Hippach’s ruling back in 2025. His office argued that Ginter wasn’t fit for a residential treatment program outside of incarceration because of the risk that he could start a worse fire that injured or killed someone.
“I don’t know any prosecutors that disagree with the thought of getting people with serious mental illnesses out of the traditional criminal system. … The issue is when an individual is in fact dangerous and they’re released into the community,” Savrnoch told the Sun in mid-July. “Generally, we at the DA’s Office are going to default to public safety. That is our guiding principle, and that’s what we will default to.
“There are cases where reasonable minds can differ as to whether or not an individual possesses a public safety risk,” Savrnoch continued. “That’s why we have judges to make that call.”
Savrnoch described AB 46 as addressing unintended consequences of the original mental health diversion statute, where judges felt like their “hands were tied” while weighing certain diversion applications.
In a statement from the California District Attorneys Association, CEO Greg Totten praised AB 46 as “restoring common sense, … by allowing judges to use their experience, knowledge, and judgement when evaluating a defendant’s dangerousness.”
Introduced by Assemblymember Stephanie Nguyen (D-Elk Grove), AB 46 passed the Assembly floor in late June with 60 yes votes, including an aye from Assemblymember Dawn Addis (D-Morro Bay).
Assemblymember Gregg Hart (D-Santa Barbara) was among the 18 Assembly members who did not vote on the legislation.
“The bulk of this bill is just empowering judges to do what we trust judges to do every day. … Judges have not only a duty but a desire to keep the public safe,” Savrnoch said. “They don’t want to see people get hurt. They want people to get help, but they don’t want to see others suffer.”
One of Sutherland’s biggest frustrations in her experience as a public defender is when a prosecutor argues against a defendant’s application for mental health diversion while also offering probation for a guilty plea, she said.
While neither route removes the defendant from the public, only the latter guarantees a conviction.
“That’s not about public safety. … They’re not saying this person needs to be locked up. They’re saying, ‘I want my conviction. I filed this case. You did bad. You get a conviction,’” Sutherland said. “It’s ironic to me.”
Sutherland said she’s currently working with a client who is adamant about seeking mental health diversion, even though the jail time he’s already served exceeds the amount the District Attorney’s Office offered him for a guilty plea.
“His offer from the prosecution is prison. But he’s already served all of that time, so he’d be out of custody, he’d be back on the street. But instead, he is remaining in jail and he’s fighting for mental health diversion,” Sutherland said. “If he just took their deal, he’d be out. He’d be done. But instead, he wants diversion so passionately that he is sitting in jail while we fight for it.
“How does that opposition advance public safety,” she continued, “when if he took the deal, he’s back on the street without any resources?”
Reach Senior Staff Writer Caleb Wiseblood at cwiseblood@santamariasun.com.
This article appears in July 30 – August 6, 2026.
