Military Diversion in California

In California, pretrial diversion usually means the suspension of criminal proceedings for a prescribed time period, subject to certain conditions. Ordinarily, when a defendant successfully completes a diversion program, the criminal charges are dismissed. Military diversion represents a relatively new addition to California's diversion programs, which generally authorize trial courts to divert eligible persons charged with qualifying offenses from the normal criminal process into treatment and rehabilitation.

To be eligible for military diversion, a person must show that he or she was, or currently is, a member of the United States military. Pen. Code, § 1001.80, subds. (b)(1), (c)(1).The person also has the burden to show that he or she may be suffering from a qualifying condition as a result of their military service. § 1001.80, subds. (b)(2)(A), (c)(2)(A).

For misdemeanors, the diversion statute provides: “A defendant charged with a misdemeanor is eligible for diversion if both of the following apply: (1) The defendant was, or currently is, a member of the United States military. (2) (A) The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of their military service. (B) The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.” (§ 1001.80(b), italics added.)

For felonies, the statute provides in relevant part: “A defendant charged with a felony offense not set forth in subdivision (o) is eligible if both of the following apply: (1) The defendant was, or currently is, a member of the United States military. (2)(A) The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or a mental health problem as a result of their military service, and the defendant’s condition was a significant factor in the commission of the charged offense. (B) The court shall find that the defendant’s condition 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.”(§ 1001.80(c), italics added.)

Subdivision (d) of section 1001.80 provides that if the trial court finds a defendant eligible for military diversion under subdivision (b) or (c), and the defendant waives their speedy trial right, then the court “may place the defendant in a pretrial diversion program as defined” within the statute. (§ 1001.80, subd. (d), italics added.) That is, if the court finds a defendant eligible for military diversion under subdivision (b) or (c), then the court has the discretion to determine whether a defendant is then suitable for diversion under subdivision (d).

And that’s essentially the framework of our military diversion framework here in California. If you’ve been arrested or charged with a crime in the North State and think you may qualify for military diversion, contact experienced attorney Davis W. Hewitt to schedule a free consultation at his Chico Office.