A Review of Pretrial Diversion Programs in California
Pretrial diversion programs in the state of California allow defendants who are eligible to avoid serving jail time as long as they complete treatment and education courses.
Pretrial diversion can sound almost too good to be true: the court defers further proceedings while a qualifying defendant charged with certain crimes completes their court-ordered courses.
The court then dismisses and seals the case, as if the matter had never happened.
No jail time, and no record of conviction. Pretrial diversion is a pure win-win. The defendant charged with a crime gets needed treatment and education, while preserving their job and reputation. The prosecution protects the public, while the court ensures procedural integrity.
California's pretrial diversion programs indeed present a great opportunity. In fact, diversion could be your best solution to a threatening and embarrassing criminal charge. The three main types of diversion programs include:
- drug diversion – Penal Code 1000 PC
- mental health diversion – Penal Code 100.36 PC
- military diversion – Penal Code 1001.81 PC
The challenge, though, is qualifying for diversion at the hearing and then completing diversion securely and timely, with the necessary documentation.
Pretrial diversion is complex. To qualify, arrange for the right services, and then complete diversion and all its attendant paperwork, you need skilled legal representation from lawyers who know the local courts, judges, and prosecutors.
You need the top-rated Los Angeles criminal defense lawyers from Eisner Gorin LLP. Let's review the different types of pretrial diversion programs below.
Drug Diversions Under Penal Code 1000 PC
Who qualifies for diversion? California Penal Code 1000 PC addresses drug crime diversions, the first of three diversion programs. When a defendant is granted diversion, they will be given:
- a specific amount of time to complete drug or alcohol treatment,
- probation, or
- pay victim restitution.
The drug charges that a court may divert are generally nonviolent misdemeanors involving possession or use, particularly for those who have no recent similar prior felony convictions.
Diversion is not available for more-serious felonies involving violence or threats and possession for distribution.
Drug crimes eligible for PC 1000 diversion
The California drug crimes that are eligible to be resolved through a diversion program include:
- Health and Safety Code 11350 HS – possession of controlled substance,
- Health and Safety Code 11357 HS – unlawful possession of marijuana,
- Health and Safety Code 11358 HS – unlawful marijuana cultivation,
- Health and Safety Code 11364 HS – possession of drug paraphernalia,
- Health and Safety Code 11368 HS – forged prescription for narcotics,
- Health and Safety Code 11375 HS – possession of prescription sedatives,
- Health and Safety Code 11377 HS – possession of methamphetamine,
- Health and Safety Code 11550 HS – under the influence of drugs,
- Penal Code 647(f) PC – public intoxication.
Eligibility for a drug diversion
In order for a defendant to be eligible for drug diversion, they must first meet the following conditions:
- no felony convictions within the past 5 years;
- no convictions of a crime making them ineligible for diversion within past 5 years;
- current criminal charges don't involve violence or threats.
Mental Health Diversion Under Penal Code 1001.36 PC
Mental health diversions are the next qualifying form of diversion, addressed in California Penal Code 100.36 PC.
The court may grant mental-health diversion for a much wider range of crimes than for drug diversions, including not only misdemeanors but also felonies.
However, the court can't grant diversion for certain California crimes:
- Penal Code 187 PC – murder
- Penal Code 192(a) PC – voluntary manslaughter
- Penal Code 220 PC – assault with intent to commit a felony
- Penal Code 261 PC – rape
- Penal Code 288.5 PC – continuous sexual abuse of a child
It also includes any type of crime that would require a defendant to register as a sex offender on Penal Code 290 PC and other serious violent crimes.
Mental health diversions depend on a qualified mental health professional making a qualifying diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders.
The mental-health professional must attest that the disorder played a significant role in the crime and that treatment should help the defendant.
Significantly, mental health diversions exclude certain especially dangerous or concerning diagnoses including:
- antisocial personality disorder,
- borderline personality disorder, and
Some examples of qualifying diagnoses, ones for which the court may grant diversion, include:
- bipolar disorder;
- schizoaffective disorder; and
- post-traumatic stress disorder.
In order to participate in a mental health diversion program, the defendant has to meet certain conditions, such as the mental disorder played a significant role in the crime, and a mental health expert believes defendant would respond to treatment.
Military and Veteran Diversion Under Penal Code 1001.80 PC
Military and veteran diversions are the third qualifying form of diversion, addressed in California Penal Code 1001.80 PC.
Under this diversion program, the court may only divert for misdemeanor charges, not felonies, such as DUI and drug possession.
Significantly, while military diversion is available both to current and former military members, to qualify for diversion the defendant must show that military service caused the defendant one or more of these conditions, which the defendant currently suffers:
- sexual trauma;
- traumatic brain injury (TBI);
- post-traumatic stress disorder (PTSD);
- substance abuse; or
- mental health problems.
What are the terms of military diversion?
Importantly, the court assigns the diversion terms. Those terms typically include treatment for drug, alcohol, or mental health issues. Other terms may include restitution for persons affected by the charged crime.
The court may also impose probation, ensuring that the defendant avoids further misconduct after completing diversion terms.
Defendants who choose diversion must also relinquish certain rights, including the right to a speedy trial. Diversion necessarily takes time. The defendant needs that time to complete program terms.
Get Help for a Diversion Program in California
You can see from the above that successful diversion includes several important steps, each of which can require the help of skilled and trusted counsel.
The defendant must prepare the case for diversion, including such things as diagnosing mental illness and documenting criminal history and military service.
The diversion hearing can require sensitive advocacy from a lawyer whose integrity the court knows and trusts.
Negotiating and advocating for diversion terms is another critical step, as is documenting to the court's satisfaction the defendant's timely completion of those steps.
Eisner Gorin LLP are top-rated Los Angeles criminal defense lawyers who can help you make the best decisions about your matter.
Pretrial diversion may be your best solution. Get the skilled and trusted advocacy that you need for pretrial diversion.
We are located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is next to the Van Nuys Superior Court at 14401 Sylvan St #112 Van Nuys, CA 91401.
Call our office for a free immediate response at (877) 781-1570.