California Pretrial Diversion Programs

California pretrial diversion programs allow eligible defendants to avoid jail time by completing treatment and education courses. There are 3 types of pretrial diversion programs:

1. Low-level misdemeanors diversion, including drug diversion (Penal Code PC 1000), and
2. Mental health diversion (Penal Code 1001.36) and
3. Military or veterans diversion (Penal Code 1001.81)

Recent changes have been made to misdemeanor diversion. These changes allow defendants to enter a diversion program without pleading guilty.

If the defendant successfully completes the diversion program, the charges are dropped and sealed. If the defendant fails the program, the case picks up where it left off. Pretrial diversion is sometimes called deferred entry of judgment.

1. What is diversion for misdemeanors under PC 1000?

California Penal Code 1000 allows certain nonviolent misdemeanors to be diverted from the criminal justice system. The charges can be resolved if the defendant completes the required drug treatment or other courses.

If the defendant chooses diversion, the court will assign a treatment list. The defendant will have to waive his or her right to a speedy trial. Defendants will then have a certain period of time to complete the treatment list. That list often includes:

• Drug treatment,
• Alcohol treatment,
• Additional classes,
• Victim restitution, and
• Probation.

If the defendant successfully completes diversion, the charges will be dismissed and sealed.

If defendants fail to complete the diversion program, their case will resume. Failing a diversion program no longer advances a case to sentencing. Before 2018, defendants had to plead guilty in order to be eligible for diversion. This is no longer the case.

2. What offenses can be diverted under PC 1000?

The following offenses can be resolved through diversion programs under Penal Code 1000:

• Possession of toxic substances for “huffing” (Penal Code 381 PC),
• Public intoxication (Penal Code 647(f)),
• Solicitation of a crime to fuel personal narcotic use (Penal Code 653(d)),
• Possession of an open container of marijuana in a motor vehicle (Vehicle Code 23222(b)),
• Possession of a controlled substance (Business and Professions Code 4060),
• Possession of a controlled substance (Health & Safety Code 11350 HS),
• Unlawful possession of marijuana (Health & Safety Code 11357 HS),
• Unlawful cultivation of marijuana for personal use (Health & Safety Code 11358 HS),
• Possession of drug paraphernalia (Health & Safety Code 11364 HS),
• Aiding or abetting the unlawful use of a controlled substance (Health & Safety Code 11365 HS),
• Having or using a forged prescription to get controlled substances for personal use (Health & Safety Code 11368 HS),
• Unlawful possession of prescription sedatives (Health & Safety Code 11375(b)(2)),
• Possession of methamphetamines for personal use (Health & Safety Code 11377 HS), and
• Being under the influence of a controlled substance (Health & Safety Code 11550 HS).

3. Who is eligible for misdemeanor or drug diversion?

To be eligible for drug diversion or misdemeanor diversion, all of the following conditions have to be met:

• The defendant has not been convicted of a crime that is ineligible for diversion under Penal Code 1000 in the last 5 years,
• The current charge does not involve a crime of violence or a threat of violence,
• There is no evidence of a more serious crime that is ineligible for diversion under Penal Code 1000, and
• The defendant has not had a felony conviction in the last 5 years.

4. What is mental health diversion under Penal Code 1001.36?

The other diversion program in California is mental health diversion. This diversion program comes from Penal Code 1001.36. It lets people who have mental health disorders get treatment if they have been charged with a crime.

The mental health treatment plans have to be approved by the court. The court can require:

• Therapy sessions,
• Counseling, and
• Drug treatment.

This treatment plan can last up to 2 years. The defendant can receive either inpatient or outpatient treatment.

Defendants who complete their mental health treatment can have their charges dismissed and sealed.

Mental health diversion is new in California. It came from a law that went into effect on June 27, 2018.¹

5. What charges are eligible for mental health diversion?

Nearly all crimes – both felonies and misdemeanors – are eligible for mental health diversion. However, the following crimes are ineligible for mental health diversion:

• Murder (Penal Code 187 PC),
• Voluntary manslaughter (Penal Code 192(a)),
• Assault with intent to commit rape, sodomy, or oral copulation (Penal Code 220 PC),
• Any crime that would require the defendant, if convicted, to register as a sex offender, except for indecent exposure,
• Rape (Penal Code 261, 261.5, or 262),
• Sex in concert with another (Penal Code 264.1 PC),
• Lewd acts involving children under 14 (Penal Code 288 PC),
• Continuous sexual abuse of a child (Penal Code 288.5 PC), and
• Certain acts of terrorism.

6. Who is eligible for mental health diversion?

To participate in mental health diversion for a criminal charge, all of the following conditions have to be met:

• The defendant suffers from a mental health condition that is not pedophilia, borderline personality disorder, or antisocial personality disorder,
• The mental disorder played a significant role in the charged offense,
• A mental health expert thinks that the defendant would respond to treatment,
• The defendant waives their right to a speedy trial,
• The defendant agrees to get treatment as a condition of the diversion program, and
• The court does not think the defendant will pose an unreasonable risk of danger to public safety.

7. What happens if the defendant fails the treatment plan?

If the defendant fails to complete the mental health treatment plan, the criminal charges will be reinstated. The defendant can fight the charges like a normal criminal case.

Defendants can fail their treatment plan if any of the following events happen:

• The defendant is charged with a new felony, or with a new misdemeanor that shows a violent tendency,
• The defendant commits a criminal offense that makes him or her unsuitable for diversion, or
• A qualified mental health expert tells the court that the defendant’s performance in their treatment plan is not satisfactory or they are gravely disabled.

These events trigger a hearing. The court will use that hearing to decide whether to:

• Modify treatment,
• End diversion and reinstate the underlying criminal charges, or
• Put the defendant under the care of a conservator.

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