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SAN DIEGO COUNTY SUPERIOR COURT                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    MILITARY DIVERSION PROGRAM:

“ONE BITE AT THE APPLE” 

By Stephen Brodsky, Esq.

Former U.S. Navy JAG Corps Officer

Many brave young men and women of the U.S. Armed Forces put their lives on the line for our country every day. Some tragically lose their lives before they have even begun to live them. Others return from overseas deployments, or hazardous duty assignments, and suffer from mental health problems caused by their military service.

Federal, state and local governments have provided numerous treatment and outreach programs to help military service members and veterans overcome their battles against substance abuse, Post-Traumatic Stress Disorder (PTSD) and other mental health problems. State law makers around the country have enacted legislation that offer active duty service members and veterans the opportunity to participate in misdemeanor diversion programs. Some states, like California, also, give current and former service members the chance to avoid criminal conviction and arrest records, even after pleading guilty to a felony. (California Penal Code section 1170.9).

In 2015, the California legislature passed into law California Penal Code section 1001.80, also known as the “Military Diversion Program (MDP).” Current service members and veterans who have committed misdemeanor crimes may be eligible to participate in the MDP if they can demonstrate that they suffer from PTSD or other mental health problems resulting from their military service.

This article will examine how the San Diego County Superior Court has implemented the MDP and why San Diego County restricts participation in the MDP to first-time misdemeanor offenders when the law itself has no such limitation.

California Penal Code section 1001.80 provides a misdemeanor diversion program for current or former members of the armed forces if a service member or veteran suffers from PTSD or some other mental health problem as a result of his or her military service. The service member or veteran may submit a request for participation in the program.  The court will likely order an assessment of the service member or veteran by a licensed mental health professional experienced in performing such assessments.

If the assessment demonstrates to the satisfaction of the court the existence of a mental health problem arising from military service, the court may place the service member or veteran in the MDP under the supervision of court personnel and licensed mental health professionals in the local community or Veterans Administration.  The service member or veteran must consent to the conditions of the MDP and waive Speedy Trial rights.

Treatment services are then provided, and MDP participants must satisfactorily complete treatment within twenty-four months. The treatment providers must file progress reports with the court every six months. If the service member or veteran fails to comply with the program or progress reports disclose that the service member or veteran is not benefitting from treatment, the court must set a hearing to determine whether the allegations of noncompliance are true. If the court finds that the service member or veteran has not complied with the terms and conditions of the MDP, the court may terminate the MDP and order reinstatement of the criminal case.

Upon successful completion of the MDP, the court will order dismissal of the charges. The underlying arrest is “deemed to have never occurred”, and no private or state employer or agency may deny employment or benefits based on the underlying arrest.

San Diego County Superior Court MDP

The San Diego County Superior Court has implemented its own military diversion program. San Diego’s version of the MDP incorporates the requirements of Penal Code section 1001.80, but has adopted a policy of limiting participation to first-time misdemeanor offenders. In other words, otherwise eligible service members or veterans are given only one bite of the apple.  If the service member or veteran wishes to participate in the MDP, a request form must be submitted to the court. Not every misdemeanor offender will be allowed to participate in the MDP, even if a psychological assessment demonstrates mental health problems resulting from military service.

San Diego’s MDP has a provision entitled, “Exclusionary Considerations”:

“Multiple grants of Military Diversion for the same defendant prevent that person from seeking the higher level of treatment available in Veteran’s Court, and, as a result, Military Diversion should only be granted on a one-time basis.”

The policy of California legislature is to offer military service members and veterans an opportunity for misdemeanor diversion on a case by case basis. Participation in California’s MDP is based upon a professional mental health evaluation. By adopting a policy that a service member or veteran should only have one chance to participate in military diversion, the San Diego Superior Court   fails to comply with the California military diversion law.

California’s military diversion law requires a court to exercise its discretion on a case by case basis, not adopt a policy which, in effect, creates a presumption that eligible service members and veterans are not capable of successfully completing the MDP more than one time. The San Diego MDP practice of excluding such service members and veterans, not only is wrong, but it violates the express provisions of the law, because it removes from the court its inherent discretion to determine each new application for diversion on a case by case basis.

“Defendants with a prior conviction for the same or similar offense are better served by a post-conviction referral to Veteran’s Treatment Court (Department 16, Central Division) as opposed to a grant of Military Diversion.  Veteran’s Treatment Court provides a higher level of structure and supervision for participants, while potentially earning a dismissal of the criminal conviction pursuant to Pen. Code 1170.9.”

While San Diego Superior Court’s exclusionary policy was probably meant to help struggling service members and veterans recover with the more intensive supervision offered in Veteran’s Court,  it paints too broad a stroke.  Each service member or veteran is different in character and personality from the next.  A service member may, or may not, benefit from another grant of misdemeanor diversion if the first attempt was unsuccessful.  An updated mental health assessment will guide the court in the exercise of its discretion.

California Penal Code section 1001.80 requires a court to exercise its discretion in every case in which an eligible service member or veteran applies for misdemeanor diversion. The San Diego Superior Court MDP must be revised to comply with California law.  The law does not confer upon California Superior courts the authority to limit the number of times a military or veteran misdemeanor offender can participate in the MDP.  While most misdemeanor repeat offenders may need more intensive court supervision, some may be successful if given another chance in the diversion program. The point is that California lawmakers did not include any restrictions concerning the number of times a military service member or veteran can apply for misdemeanor diversion under Penal Code section 1001.80.

San Diego’s policy of one bite of the apple should be discontinued. The San Diego Superior Court should exercise its discretion in every application for military diversion to conduct an assessment to determine the appropriateness of the applicant’s participation in the MDP.  This approach is consistent with the spirit and letter of the military diversion law.

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