CHAPTER 2.9C. Military Diversion Program [1001.80- 1001.80.]

(a) This chapter shall apply to a case before a court on an accusatory pleading alleging the commission of a misdemeanor offense if both of the following apply to the defendant:

(1) The defendant was, or currently is, a member of the United States military.

(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 his or her military service. The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.

(b) If the court determines that a defendant charged with an applicable offense under this chapter is a person described in subdivision (a), the court, with the consent of the defendant and a waiver of the defendant’s speedy trial right, may place the defendant in a pretrial diversion program, as defined in subdivision (k).

(c) If it appears to the court that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from the treatment and services provided under the diversion program, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from diversion, the court may end the diversion and order resumption of the criminal proceedings. If the defendant has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed.

(d) If a referral is made to the county mental health authority as part of the pretrial diversion program, the county shall provide mental health treatment services only to the extent that resources are available for that purpose, as described in paragraph  of subdivision  of Section 5600.3 of the Welfare and Institutions Code. If mental health treatment services are ordered by the court, the county mental health agency shall coordinate appropriate referral of the defendant to the county veterans service officer, as described in paragraph  of subdivision  of Section 5600.3 of the Welfare and Institutions Code. The county mental health agency is not responsible for providing services outside its traditional scope of services. An order shall be made referring a defendant to a county mental health agency only if that agency has agreed to accept responsibility for all of the following:

(1) The treatment of the defendant.

(2) The coordination of appropriate referral to a county veterans service officer.

(3) The filing of reports pursuant to subdivision (h).

(e) When determining the requirements of a pretrial diversion program pursuant to this chapter, the court shall assess whether the defendant should be ordered to participate in a federal or community-based treatment service program with a demonstrated history of specializing in the treatment of mental health problems, including substance abuse, post-traumatic stress disorder, traumatic brain injury, military sexual trauma, and other related mental health problems.

(f) The court, in making an order pursuant to this section to commit a defendant to an established treatment program, shall give preference to a treatment program that has a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service, including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs.

(g) The court and the assigned treatment program may collaborate with the Department of Veterans Affairs and the United States Department of Veterans Affairs to maximize benefits and services provided to a veteran.

(h) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months.

(i) A record filed with the Department of Justice shall indicate the disposition of those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The defendant may indicate in response to a question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (j). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(j) The defendant shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (i), this section does not relieve him or her of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.

(k) (1) As used in this chapter, “pretrial diversion” means the procedure of postponing prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication.

(2) A pretrial diversion program shall utilize existing resources available to current or former members of the United States military to address and treat those suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service.

(l) Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a pretrial diversion program in accordance with this section includes a misdemeanor violation of Section 23152 or 23153 of the Vehicle Code. However, this section does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.

HOW DOES CALIFORNIA PENAL CODE SECTION 1170.9 COMPARE WITH CALIFORNIA PENAL CODE SECTION 1001.80?

California Penal Code section 1170.9 rehabilitates your criminal record so that you no longer have a conviction or arrest record.  This law is not the same as Pretrial Military Diversion under California Penal Code section 1001.80.

Pretrial Military Diversion means that you will not even be prosecuted for the charges which were originally filed against you.  The arrest upon which the charges were based is deemed to have never occurred.  You may deny to anyone that you were ever arrested and charged with a crime, except on applications for employment as a police officer.

Even in cases of Pretrial Military Diversion, any restriction, revocation or suspension of your driving privileges will remain unaffected by successful completion of the military diversion program.

A big difference between these two laws is that California Penal Code section 1170.9 applies to misdemeanors and felonies whereas California Penal Code section 1001.80 applies only to misdemeanors (or felonies later reduced to misdemeanors).

IMPORTANT CONSIDERATIONS FOR LEGAL COUNSEL 

Regardless of whether your military client is eligible for Pretrial Military Diversion or Post-Plea Record Rehabilitation, as legal counsel, it is imperative that you always consult the client’s military command before counseling the client to participate in either of these programs.

If the client’s military command intends to prosecute the client at a military courts-martial or initiate administrative separation proceedings, you will want to carefully evaluate the strength of your client’s defense and determine your client’s chances of an acquittal at trial. If the client has a good trial defense, his or her legal interests may be best served by taking the case to trial.  If successful, a not guilty verdict, especially if followed by a finding of factual innocence, will help your client avoid military discipline or administrative separation.

Most commands would not pursue military discipline or administrative separation if a military client is acquitted after a jury trial. However, a discretionary dismissal of charges by the prosecuting authority may not deter a military command from pursuing disciplinary or administrative sanctions against a military client.

This is especially important with respect to senior military non-commissioned and commissioned officers who following a career path in the military. A loss of career as a result of bad advice may result in the loss of retirement funds and other lifetime benefits.

Always consider whether or not the advice you give your client will have any adverse impact on your client’s eligibility for benefits from the Veteran’s Administration or under the GI Bill. These benefits are very substantial, and the loss of benefits as a result of poor legal advice may result subject you to a state bar complaint or a civil lawsuit by your client.

WHEN IN DOUBT, CONSULT A SENIOR OFFICER IN THE JUDGE ADVOCATES GENERAL CORPS IN YOUR CLIENT’S BRANCH OF SERVICE.

If you have any doubts about what advice to give your military client regarding participation in California Penal Code section 1170.9 or 1001.80, always seek a consultation with a senior JAG Corps. Officer in your client’s branch of service. This will go a long way to educating you on military policies and procedures and will help you when representing military service members and veterans in the future.