Who Qualifies for Pretrial Diversion in California?
Diversion allows charges to be dismissed in certain situations. However, only certain crimes qualify for diversion. Judges can also refuse diversion based on criminal history and other factors.
This article discusses what diversion is, who qualifies for diversion, and what happens when diversion is – or is not – completed. Finally, it explains how a Marin County criminal defense attorney can help with diversion and other issues.
What Is Pretrial Diversion in California?
Pretrial diversion allows judges flexibility in certain cases.
A typical California criminal case ends with the judge handing down a sentence like jail or probation. But in diversion, rather than sentencing the defendant, the judge can help the defendant avoid criminal consequences. This redirection – or diversion – away from the criminal justice system can be very helpful to people charged with crimes.
When a judge orders diversion, the case pauses for up to 24 months. During this 24-month period, the defendant must complete certain steps, such as drug, alcohol, or mental health treatment. If the defendant successfully completes the steps, the charges will be dismissed. There will be no jail or probation.
What Types of Pretrial Diversion Are Available in California?
Generally, California offers four types of diversion programs: misdemeanor diversion, drug diversion, mental health diversion, and military diversion.
Misdemeanor Diversion
Under Penal Code § 1001.95, judges can grant diversion for many misdemeanors. Certain misdemeanors do not qualify, including crimes that require sex offender registration, domestic violence offenses, and stalking.
Drug Diversion
Penal Code § 1000 allows diversion for certain drug charges, including simple possession of controlled substances, possession of drug paraphernalia, and being under the influence of a controlled substance. The defendant must meet four requirements:
- They must not have had any felony convictions in the past five years.
- The current drug charges must not involve violence or the threat of violence.
- The defendant must not have been convicted of a drug crime that would not qualify for diversion under Section 1000 within the past five years.
- If there are multiple charges in the current case, none of them can be a crime that does not qualify for diversion under Section 1000.
Mental Health Diversion
Penal Code § 1001.36 allows diversion for defendants with mental health issues. However, not all crimes qualify. The law explicitly makes crimes such as murder, voluntary manslaughter, rape, and crimes that require sex offender registration ineligible.
If the crime qualifies, the analysis has two steps.
In the first step of the eligibility analysis:
- The defendant must have a qualifying mental health disorder; and
- The mental health disorder must have significantly contributed to the alleged crime.
You cannot just say that you have a mental health issue. Your Marin County defense attorney must give the court proof that you have been diagnosed with or treated for a mental health disorder in the past five years. The court must then presume that the disorder played a role in the crime.
Then, the judge must decide if mental health treatment will be effective. To do this, the judge will consider factors such as testimony from a mental health professional that treatment will address the issues that led to the crime and whether the defendant poses a danger to the community.
IMPORTANT NOTE:
AB 46 will take effect on January 1, 2027. This makes at least two major changes to mental health diversion. First, the new law makes it harder to qualify for the presumption that the mental health condition affected the crime. The public safety standards are also stricter. Your Marin County criminal defense attorney can explain these changes in more detail.
Military Diversion
Penal Code § 1001.80 allows diversion for members of the armed forces. For misdemeanors, a person qualifies if they are current or former military personnel and their alleged criminal activity might have been influenced by a qualifying mental health diagnosis related to their military service, such as PTSD. If the charge is a felony, there must be a connection between the mental health condition and the actions that led to the alleged crime. However, the law tells the judge to assume that it did.
Which Crimes Are Excluded from Pretrial Diversion in California?
It depends on the type of diversion. As noted in the prior section, each type of diversion applies to – and excludes – certain crimes.
Some people also think felonies are not eligible for diversion. While this is true for misdemeanor diversion, it is not true for military or mental health diversion. Your Marin County defense attorney can tell you more about which crimes qualify.
What Happens if You Complete or Fail Pretrial Diversion?
If you successfully complete the diversion requirements within the specified time, the judge will dismiss the charges. However, there may still be a record of the arrest. To address this, you’ll need to pursue expungement options.
If you fail to complete diversion, the court will usually hold a hearing to find out why. If there is a compelling reason, the court may show mercy. If there is not, the court will likely revoke the diversion and reinstate the criminal proceedings. At this point, jail time, fines, and probation are all options.
Frequently Asked Questions About California Diversion Programs
- Can a judge allow diversion if the prosecutor objects?
Generally, yes. However, it depends on the type of diversion.
- Is diversion only for first-time offenders?
No. Depending on the type of diversion, people with multiple convictions may qualify.
- Can pretrial diversion affect my immigration status?
Maybe. Federal courts have ordered deportation after diversion in some cases. Your criminal defense attorney and immigration lawyer can tell you more.
- Who pays for counseling or treatment required by a diversion program?
It depends, but generally, defendants must pay for their own treatment. However, people who qualify for programs like Medi-Cal can use those programs to pay their expenses.
How Can a Marin County Criminal Defense Lawyer Help with Diversion?
Diversion can be complicated, but an experienced Marin County defense attorney can help. Your defense attorney can help you:
- Determine if your charges qualify for diversion
- Figure out which diversion program is best for you
- Gather relevant records
- Persuade the judge that you meet the requirements for diversion
- Identify treatment programs
- Counter the prosecution’s arguments
- Comply with the treatment and report to the court
If you need help qualifying for one of California’s diversion programs, contact Brownstein Law Group. We are experienced, and we go the extra mile for our clients. To learn more about what we can do for you, call 415-795-9059 or use our online contact form.