RivCo DA Throws Support Behind Ending 'Free Ride Mental Health Diversions' for Defendants

RIVERSIDE COUNTY, CA — Riverside County District Attorney Mike Hestrin said Thursday he supports proposed legislation to amend state law to prevent criminal offenders from exploiting courts' mental health treatment allowances by using claims of psychiatric disorders to avoid incarceration -- only to re- offend, sometimes with deadly consequences.

"Our office proudly co-sponsors Assembly Bill 46 because it restores common sense public safety protections to mental health diversion by ensuring judges can deny diversion to defendants who pose a substantial and undue risk to others, requires courts to consider victims' rights ... and mandates robust treatment plans when diversion is granted," Hestrin said. "After repeated tragic cases in which dangerous defendants committed new violent crimes while on diversion, AB 46 strikes the right balance between treatment and community safety."

The bill is slated for its first hearing before the Senate Public Safety Committee on Tuesday.

Diversion is permitted under Penal Code section 1001.36, which provides criteria for when an offender is eligible for mental health treatment in lieu of jail or prison. In recent years, a high volume of cases, often involving violence, have been removed from the criminal adjudication process in Riverside County and assigned to diversion.

The main requirement for judicial approval of diversion consists of affidavits from at least one mental health specialist affirming the defendant has a psychological disorder that likely contributed to perpetration of the crime. Additionally, the defendant, through his or her attorney, is supposed to submit a specific plan for treatment of the disorder, usually involving therapy.

However, even without a treatment plan, some judges could face appellate review and invalidation of their decisions to reject diversion, according to the California District Attorneys' Association, which sponsored AB 46.

CDAA identified one instance in which a Riverside County Superior Court judge wanted to cancel the diversion option for a defendant because he obviously posed "an unreasonable risk to public safety" and shouldn't be permitted to walk the streets.

"If the court could make its decision regarding mental health diversion based on the facts of the offense ... I think this was a horrific attack on someone, and because of that and the callousness that I think was involved at the time, if I could use that as a basis to deny, I would," according to the judge's statement read in open court. "But the way that 1001.36 is written ... does not afford the court the discretion to do that."

In a 2024 case out of San Diego County, a judge attempted to squash diversion for a repeat criminal offender, Jeanette Sarmiento, who tried to rob a person but used a post-traumatic stress disorder diagnosis and other factors to argue that mental health diversion was a viable option in lieu of standard criminal adjudication. But she did not come forward with a specific treatment plan.

The CDAA cited the case as an example of excessive leniency favoring an offender.

"The record showed that the defendant `for many years has been under the care of a psychiatrist or other physician and has been treated for PTSD and depression or has been offered treatment, and despite such treatment or offers, she continued to abuse methamphetamine and to commit crimes,"' the CDAA stated.

The judge's cancellation of diversion led the defendant to appeal, culminating in the state Court of Appeals for the Fourth District, a jurisdiction that includes Riverside County, to countermand the lower court judge's decision and permit Sarmiento to proceed with a non-specific diversion plan.

The CDAA cited multiple instances in which defendants placed in diversion had failed to curb their criminal conduct, sometimes with fatal results.

In Sacramento County, a defendant who perpetrated two takeover robberies in 2024 was nonetheless granted diversion, only to go out and fatally stab a 40-year-old man, apparently without provocation, the organization said.

In Orange County, a defendant who served seven years behind bars for assault with a deadly weapon stabbed a pedestrian with a machete for no reason. After he was later granted diversion in that case disposed in Orange County Superior Court, "He absconded from his treatment program and stabbed another bystander 34 times with a box cutter in Los Angeles," CDAA said.

That victim survived.

In Stanislaus County, a defendant granted diversion in a neighboring jurisdiction after he admitted carjacking a senior went on to use his vehicle to run over and kill his girlfriend -- whom he was charged with assaulting on several prior occasions, according to CDAA.

Defendants who complete diversion programs can have their offenses expunged from criminal records.

"AB 46 addresses these concerns by allowing courts to consider whether a defendant poses a substantial and undue risk to the physical safety of another person and whether the proposed treatment plan is clinically appropriate to address the mental health condition that contributed to the crime," according to CDAA.