Is Domestic Violence Eligible for Judicial Diversion in California?
California has implemented several laws that offer a ray of hope in the form of pre-trial diversion programs. These programs can help individuals, including those accused of domestic violence, steer clear of conventional prosecution and the burden of a criminal record upon successful completion.
However, if you are accused of an act of domestic violence, you generally will not qualify for diversion. Yet, it's important to remember that with the right legal assistance, there is always a slim chance of an exception that could lead to a different type of diversionary program, offering a glimmer of hope in a challenging situation.
Under Penal Code 1001.95 (the statute allowing judges to offer diversionary programs), domestic violence offenses are generally not eligible for pre-trial judicial diversion.
However, suppose your attorney can demonstrate that a diagnosable mental health condition significantly influenced your actions, and certain other criteria are met. In that case, you may find a glimmer of hope in a different type of diversionary program, specifically a mental health diversion as outlined in Penal Code 1001.36. Let's explore this option further.
California Penal Code 1001.95 PC allows judges the discretion to offer diversion programs to eligible individuals charged with misdemeanors. Diversion, in this context, refers to a program that, if successfully completed, can lead to the dismissal of the charges against you.
However, certain crimes are specifically excluded from this form of relief, and domestic violence is one of them. This includes charges under sections of the law pertaining to abuse or threats against spouses, cohabitants, dating partners, or family members.
The rationale here is to ensure that crimes seen as threats to the safety and well-being of vulnerable individuals are not minimized. However, this does not mean that all avenues for receiving diversion are closed to you.
What Does PC 1001.95 Say?
The full statutory text of California Penal Code 1001.95 PC says -
"(a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge's discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant's specific situation.
(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d) If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court determines that the defendant has not complied with the terms and conditions of diversion, it may terminate the diversion and reinstate the criminal proceedings.
(e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1) Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
(2) Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.
(3) A violation of Section 646.9."
PC 1001.36 Mental Health Diversion
If mental health issues contributed significantly to your alleged offense, there may be another route to judicial diversion. Penal Code 1001.36 governs the diversion of individuals with mental disorders and allows pre-trial diversion for defendants diagnosed with qualifying mental health conditions. However, this is subject to strict eligibility requirements.
PC 1001.36 says, "(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).
(b) A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met:
(1) The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.
The defense shall provide evidence of the defendant's mental disorder. It shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert.
In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant's medical records, arrest reports, or any other relevant evidence.
(2) The defendant's mental disorder was a significant factor in the commission of the charged offense. Suppose the defendant has been diagnosed with a mental disorder.
In that case, the court shall find that the defendant's mental disorder 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.
A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant's mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense."
Requirements for PC 1001.36 Eligibility
To qualify for mental health diversion, you must first meet some crucial criteria under Penal Code 1001.36:
- Diagnosable Mental Health Condition: You must have a verified mental health disorder listed in the latest DSM. Qualifying conditions include bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD. Certain conditions, such as antisocial personality disorder and pedophilia, are excluded.
- Significant Role in the Offense: Your attorney must show that your mental health condition significantly contributed to the alleged domestic violence offense. Evidence like medical records, expert testimony, or evaluations may be required.
- Suitability for Treatment: The court must determine that your symptoms are likely to improve with mental health treatment, either inpatient or outpatient, based on expert opinion from a qualified professional.
- No Unreasonable Risk of Danger: The court must find that you won't pose a significant risk to public safety during treatment. This evaluation considers your history, the offense, and expert testimony.
Even under Penal Code 1001.36, not all domestic violence cases are eligible for mental health diversion. If your alleged offense involves a sex crime (such as sexual battery) or homicide, you will not qualify for diversion under any circumstances. Crimes involving particularly egregious forms of violence often fall into this exemption category.
The Road to Approval
Mental health diversion requests are decided at the court's discretion. This process typically starts with your attorney filing a motion for diversion and presenting evidence of your mental health condition, its connection to the offense, and your suitability for treatment. The prosecution has the opportunity to object, after which the judge will make the final decision.
If approved, you will enter a pre-approved mental health program that could last for up to one year for misdemeanors or two years for felonies. Throughout your participation, treatment providers are expected to report your progress to the court. Upon successful completion of the program, your charges will be dismissed, and the arrest related to the case may be sealed or deemed to have never occurred.
How the Right Attorney Can Help
Due to California's firm stance against domestic violence, you won't be able to qualify for a diversion program on the basis of the domestic violence charge alone.
Even if an underlying mental illness contributed to the act, qualifying for a mental health diversion can be a challenging process- one that should not be attempted without the help of an experienced California criminal defense attorney.
A skilled attorney can evaluate your case, gather evidence to support your claim, and present convincing evidence and arguments to convince the judge that you may be eligible for this alternative form of diversion. For more information, contact our criminal defense law firm, Eisner Gorin LLP, located in Los Angeles, California.
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