Diversion options for veterans

The California Legislature has recognized that persons who served in the military sometimes commit crimes due to mental and physical conditions they suffered as a result of their service. Among the statutes enacted to benefit veterans is Penal Code § 1001.80, commonly referred to as military diversion.

Diversion allows an offender to be referred to a rehabilitation program instead of being prosecuted. The primary objective of military diversion is for the court to consider whether an eligible veteran defendant will benefit from education, treatment and rehabilitation. Wade v. Superior Court (2019) 33 Cal.App.5^th 694.

Until recently, military diversion was only available to veterans accused of committing misdemeanor crimes. But as of Jan. 1, 2025, veterans charged with committing most felony crimes will now have an opportunity to be diverted from prosecution. Penal Code § 1001.80 (c).

In addition to military diversion, Penal Code § 1001.36, known as the mental health diversion statute, offers some veterans another diversion option. While there are numerous diversion statutes in the Penal Code, this article will discuss the three primary routes available to veterans to be diverted from prosecution: 1) military diversion (misdemeanors), Penal Code § 1001.80; 2) military diversion (felonies), Penal Code § 1001.80; and, 3) mental health diversion (misdemeanors or felonies), Penal Code § 1001.36. All three have different eligibility requirements and other prerequisites.

Eligibility requirements for military diversion (misdemeanors)

For a person who is accused of committing a misdemeanor to be eligible for military diversion, there are two main requirements: 1) the defendant was or is a member of the United States military; and, 2) 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 military service. Penal Code § 1001.80 (b).

What does the phrase "may be suffering" mean? Well, a lot. Decades ago, the California Supreme Court said the following about the word "may." "Although we agree with the trial court that the word 'may' connotes a 'reasonable possibility,' that phrase  . . . encompasses a range of meaning extending from the most unlikely possibility which might influence the views of a reasonable man to events which fall but a hair short of certainty." No Oil v. Los Angeles (1970) 60 Cal.4^th 1086, n.16.

A low threshold to qualify as "may be suffering" comports with the legislative goal of allowing veterans who are suffering as a result of their service to get the services they need and also to help them be more easily employed by keeping convictions off their records if they successfully complete the program. Hopkins v. Superior Court (2016) 2 Cal.App. 5^th 1275. Also, the minimal eligibility requirement impliedly recognizes the possibility that it may be difficult for a veteran to obtain formal documents from the military branches and Department of Veterans Affairs.

Additionally, it just makes sense that the entry requirement for military diversion is low. Some veterans compartmentalize their experiences until later. So, a formal diagnosis of a qualifying condition may not be made for many years after separation from the service. A Military Times article reported that a Desert Storm Marine watched his best friend get killed. The Marine said: "Just as soon as he hit the sand, I had to put it out of my mind. We were under fire and I had other men to keep alive. I tried not to think about it until the war was over. Then it ended and his death hit me like a ton of bricks." And when Vietnam vets began retiring, many presented with compartmentalized mental health conditions. In People v. Valliant (2020) 55 Cal.App.5^th 903, the defendant was not diagnosed with post-traumatic stress disorder until years after he committed the crime.

But probably the most important reason the Legislature established such a low threshold for veterans to enter a diversion program is that as a society, we want to show our gratitude for their service. If veterans get in trouble with the law, the least we can do is to try to help them find their way back to being the good citizens they presumably were when they volunteered to serve in the military. As stated by the United States Supreme Court: "Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines. . ." (Porter v. McCollum, 558 U.S.30 (2009).

Eligibility and other requirements for military diversion (felonies)

Under the new amendments to Penal Code § 1001.80, felony diversion eligibility has the same two requirements as misdemeanor diversion, but additional requirements as well. Thus, in addition to the necessity the defendant was or is in the United States military and may be suffering from one of the listed conditions, there are other preconditions.

The defendant's condition must be a significant factor in the commission of the charged felony offense, which is not a requirement for misdemeanor military diversion. However, the statute contains a presumption that there is such a nexus unless there is clear and convincing evidence otherwise. Penal Code § 1001.80 (c)(2)(B).

When deciding whether or not a defendant's condition was a significant factor in the commission of the charged offense, the court may consider any relevant and credible evidence, including police reports, preliminary hearing transcripts, witness statements, statements by the defendant's mental health treatment provider, medical records, or records or reports by qualified medical experts, that the defendant displayed symptoms consistent with the condition at or near the time of the offense. Penal Code § 1001.80 (c)(2)(C).

Additionally, not all charged felonies may be diverted. Murder, certain sex and child abuse offenses are not eligible for diversion. The specific disqualifying crimes are listed in Penal Code § 1001.80 (o).

Mental health diversion (misdemeanors or felonies)

The mental health diversion statute has been amended several times in the past few years. Jan. 1, 2025, was the most recent amendment. Penal Code § 1001.36.

Mental health diversion requires a formal diagnosis of a disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders by a qualified mental health expert. That's a manual issued by the American Psychiatric Association used by health care professionals; the current version is DSM-5. Antisocial personality disorder and pedophilia are excluded. The eligibility requirements are found in § 1001.36 (b).

The defense bears the burden of providing evidence of defendant's mental health disorder. People v. Gerson (2022) 80 Cal.App.5^th1067. The court may consider any relevant and credible evidence, such as police reports, preliminary hearing transcripts, witness statements, statements by the defendant's mental health provider, medical records, records or reports of qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

The diagnosis by a qualified mental health expert must be within the last five years. The term "qualified mental health expert" is defined in § 1001.36 (g)(4) as including a psychiatrist, psychologist, a person described in Welfare and Institutions Code § 5751.2 "or any person whose knowledge, skill, experience, training, or education qualifies them as an expert." In Fresno County Public Guardian v. Superior Court (2022) 81 Cal.App.5^th Supp. 1, the court held that a licensed marriage and family therapist, LMFT, was a qualified mental health expert under § 1001.36.

Under the present version of § 1001.36 (b)(2), a defendant is eligible for mental health diversion if the defendant's mental disorder was a significant factor in the commission of the charged offense. And the court is required to find a defendant's mental disorder was a significant factor 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. Penal Code § 1001.36 (b)(2).

Defendants charged with murder or voluntary manslaughter are not eligible for diversion. Also excluded are certain crimes dealing with sex, child abuse and weapons of mass destruction. Penal Code § 1001.36 (d).

Other particularities of mental health diversion

Under mental health diversion, if the defendant is charged with a misdemeanor, the period of diversion shall be no longer than one year, and no longer than two years if charged with a felony. Penal Code § 1001.36 (f)(1)(C)(i-ii).

The hearing on the prima facie showing for mental health diversion shall be informal and may proceed with 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. Penal Code § 1001.36 (e). In People v. Watts (2022)79 Cal.App.5^th 830, the defendant argued on appeal the trial court erred in not permitting live expert testimony. In rejecting that argument, the Court of Appeal said: "the statue explicitly states that the hearing is informal, and may be based on purely documentary evidence."

The court does not have a sua sponte duty to consider mental health diversion in the absence of a request by the defendant or any other person. People v. Banner (2022) 77 Cal.App. 5^th 226. While the statute specifically states the hearing on a request for diversion shall be informal, it is silent as to whether or not a formal motion is necessary. Penal Code § 1001.36 (e). It is notable, however, that in People v. Braden (2023) 14 Cal.5^th 791, the defense did bring a motion. At any stage of the proceedings, the court may require a defendant to make a prima facie showing of the minimum eligibility requirements for diversion. Penal Code § 1001.36 (c). In Braden, the California Supreme Court considered the latest point at which defendants with qualifying mental health disorders may request diversion under § 1001.36. The court concluded that the request must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.

Suitability for diversion

Military diversion (misdemeanors or felonies)

The military diversion statute does not mention suitability. At least one appellate court addressed the issue. In Wade v. Superior Court (2019) 33 Cal.App.5^th 694, the trial court denied a veteran's request to enter a pretrial diversion program, finding him unsuitable for diversion, despite the fact the veteran was eligible under Penal Code § 1001.80. In reversing, the appeals court found the trial court abused its discretion in departing from the principles behind the statute by applying the felony sentencing guidelines without apparent consideration of the rehabilitative purpose of diversion.

Mental health diversion (misdemeanors or felonies)

Under the mental health diversion statute, for any defendant who satisfies the eligibility requirements, the court must consider whether the defendant is suitable for pretrial diversion. Penal Code § 1036 (c). There are four suitability requirements and all must be met.

First, the opinion of a qualified mental health expert must be that the defendant's symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. Second, the defendant consents to diversion and waives the defendant's right to a speedy trial. Third, the defendant agrees to comply with treatment as a condition of diversion. Lastly, the defendant will not pose an unreasonable risk of danger to public safety, as defined in Penal Code § 1170.18, if treated in the community.

The issue of whether a military veteran posed an unreasonable risk of danger to public safety was considered in People v. Whitmill (2022) 86 Cal.App.5^th 1138. The veteran had been treated for both military sexual trauma and post-traumatic stress disorder. On the day of the alleged crime, a friend approached his car and asked if he was okay. The veteran replied, "Don't walk up on me," and fired a shot into the air. The trial court denied mental health diversion under § 1001.36 because of a threat to public safety. The appeals court reversed, finding a lack of substantial evidence the man posed an unreasonable risk to public safety. In People v. Williams (2021) 63 Cal.App.5^th 990, the appeals court held that when determining whether a defendant is an unreasonable risk of danger to public safety, as would make him ineligible for mental health diversion under § 1001.36, the risk of danger is narrowly confined to the likelihood the defendant will commit a limited subset of violent felonies known as super-strike offenses.

In deciding the suitability issue, 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 violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

Driving under the influence

When the charged crime is driving under the influence, the issue of diversion has been the topic of much debate. The reason for the debate is Vehicle Code § 23640, which prohibits a court from suspending or staying proceedings for the purpose of attending a treatment program.

When Penal Code § 1001.80 first came into effect in 2015, stating that veterans accused of a misdemeanor could be diverted, it did not mention DUIs. Thus, trial courts were faced with one statute that was more specific than another, but when you think about it, which one was more specific? The Vehicle Code statute referred only to crimes of driving under the influence, while the military diversion statute in the Penal Code referred to all misdemeanors. On the other hand, the Vehicle Code statute referred to all offenders, but the military diversion statute covered only present or past members of the military. It is no wonder different results were coming from different courts. See People v. VanVleck (2016) 2 Cal.App.5^th 355; Hopkins v. Superior Court (2016) 2 Cal.App.5^th 1275. The California Supreme Court granted review in both cases.

Before California's highest court resolved the split, the Legislature amended the military diversion statute. As of 2017, Penal Code § 1001.80 specifically stated that notwithstanding Vehicle Code § 23640's prohibition against diversion for those accused of DUIs, veterans accused of misdemeanor DUIs could be diverted.

Now that Penal Code § 1001.80 permits diversion for veterans accused of felonies as well as misdemeanors, the DUI issue again comes to the forefront. The current version states that notwithstanding Vehicle Code § 23640, a defendant charged with a misdemeanor DUI may be placed in diversion. Penal Code § 1001.80 (n)(1). But not so for felonies. A veteran charged with felony DUI shall not be placed in pretrial diversion. Penal Code § 1001.80 (n)(2).

What about mental health diversion and DUIs? Penal Code § 1001.36 is silent on the issue. In two cases, the courts held that DUI defendants are not eligible for mental health diversion. Moore v. Superior Court (2020) 58 Cal.App.5^th 561; Tellez v. Superior Court (2020) 56 Cal.App.5^th 439. However, another court held that a mentally incompetent defendant charged with a DUI was eligible for mental health diversion. Persiani v. Superior Court (2024) 100 Cal.App.5^th 48.

Firearms

For all three situations---veterans accused of committing a misdemeanor under the military diversion statute, veterans accused of committing a felony under the military diversion statute, and persons accused of committing either a misdemeanor or a felony under the mental health diversion statute---the law is the same regarding firearms.

The prosecution may request an order from the court that the defendant be prohibited from controlling, owning, purchasing, possessing, or receiving a firearm until the defendant successfully completes diversion because the defendant is a danger to self or others pursuant to Welf. & Inst. Code § 8103 (i). The prosecution shall bear the burden of proving by clear and convincing evidence that both of the following are true:

· The defendant poses a significant danger of causing personal injury to self or another by controlling, owning, purchasing, possessing, or receiving a firearm; Penal Code §§ 1001.36 (m)(1) & (1001.80 (p)(1).

· The prohibition is necessary to prevent personal injury to the defendant or another 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. Penal Code §§ 1001.36 (m)(1-2) & (1001.80 (p)(1-2).

A firearm prohibition order shall be in effect until the defendant has successfully completed diversion or until firearm rights are restored pursuant to Welf. & Inst. Code § 8103 (g). Penal Code §§ 1001.36 (m)(4) & 1001.80 (p)(4).

Why might a veteran request diversion under the mental health diversion statute instead of the military diversion statute?

Under the previous version of the military diversion statute, Penal Code § 1001.80, a veteran accused of a felony and also suffering from one of the listed conditions as a result of military service, did not have diversion available. But since Jan. 1, 2025, military diversion is available for veterans accused of a felony under Penal Code § 1001.80. So, with the statutory change, why might a veteran seek diversion under the mental health diversion statute, Penal Code § 1001.36?

An apparently obvious answer to that question is that the veteran might be suffering from a condition other that those listed in the military diversion statute---sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service. Penal Code § 1001.80 (c)(2)(A). But that phrase "or mental health problems" seems a much less daunting challenge than Penal Code § 1001.36's requirement of a formal diagnosis of a disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders by a qualified mental health expert. So, it doesn't seem likely a veteran with any kind of mental health problem might prefer Penal Code § 1001.36 over Penal Code § 1001.80.

But what about Penal Code § 1001.80's requirement that the condition be the result of military service? That requirement does not exist in the mental health diversion statute. So, some veterans may have a condition listed in Penal Code § 1001.80 but the condition may not be the result of their military service. They might prefer pursuing diversion under Penal Code § 1001.36.

Another possibility of a veteran seeking mental health diversion rather than military diversion is if the veteran is accused of felony driving under the influence in a very limited circumstance. That is, the veteran is also found incompetent to stand trial and later found suitable for diversion under Penal Code § 1370.01. Persiani v. Superior Court (2024) 100 Cal.App.5^th 48.

Conclusion

The mental health diversion statute, Penal Code § 1001.36, states nothing specific about veterans or active duty military personnel. On the other hand, the military diversion statute, Penal Code § 1001.80 is replete with special considerations for defendants who served in the military, and the content of the programs they are to receive, in subdivisions (f), (h) and (i). Under most circumstances, military diversion is the preferred route for veterans. In fact, even when veterans are diverted via mental health diversion under Penal Code § 1001.36, some courts are ordering them into those programs specifically designed for treating veterans.

The California Legislature deserves a salute for its careful and frequent consideration of veterans charged with crimes.