Criminal Law Corner: “What is Diversion?”

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By Stephen C. Mancini

          Imagine being retained by a client who has been charged with robbery.  It is a felony offense where he could be facing a strike and significant years in state prison.  However, you learn from the client that six months before the robbery he was in a vehicular accident where he sustained traumatic brain injury.  As a result of the TBI, the client suffers from depression and a bipolar disorder.

          In another case, you are retained by a client who was making a left turn into a strip mall and failed to notice a pedestrian walking across the entry and struck and killed the pedestrian.  Your client is being charged with misdemeanor involuntary manslaughter without gross negligence.

          Both clients are facing serious offenses, and now is the time you turn to your diversion arsenal.  So, what is Diversion?

          Diversion is a program developed by the Legislature and used by the Courts allowing those defendants who are eligible and suitable to avoid a criminal conviction and have their case dismissed if the defendant completes certain requirements. The first diversion statute was passed in 1972 and was utilized for first-time drug offenders.  In 2009, the courts expanded diversion to include veterans who required treatment and whose condition(s) resulted in their crimes.  In 2018, diversion was expanded to include mental health issues.  

          Diversion is available for certain felonies and misdemeanors, where the defendant is both eligible and suitable.  In Felony Diversion, a defendant may be placed on a diversion program if he/she had certain mental health issues, certain substance abuse issues, a developmental disability, and/or military trauma that was a significant factor in the commission of the charged offense.

          Misdemeanor Diversion (also called Judicial Diversion) is available to a misdemeanant who commits certain crimes, but not those disqualifying crimes such as domestic violence, stalking, sex crimes requiring registration, DUIs, and certain other charges involving serious offenses or those involving child victims.

          The duration of the diversion program can be a minimum of one year or a maximum of two years. Both the diversion program and its duration are within the sole discretion of the judge.

          In both felony and misdemeanor cases, the defendant must be eligible and suitable.

          In a felony case, the general requirements are that the crime must be a non-violent felony, excluding such felonies as murder or sexual assault.  Other violent felonies such as robbery or burglary are still at the discretion of the court.  Generally, felony convictions within the last 5 years will disqualify the defendant.  Once this initial hurdle is crossed, generally to be eligible, one of the above-referenced issues such as mental health, substance abuse, developmental disability, and/or military trauma can be shown to have been a significant factor in the commission of the charged offense.

          In a substance abuse case, generally what is required for eligibility is that the substance abuse is for non-violent possession cases. In mental health diversion, a defendant must have a DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition – the latest edition) mental disorder such as PTSD, a Bipolar Disorder, Schizophrenia, or other qualifying disorders.  Developmental disability refers to conditions originating before age 18 such as autism, mental retardation, cerebral palsy, epilepsy, and several other qualifying disorders. Military trauma generally and most commonly refers to Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), and other traumatic issues.

          In the present hypothetical above, a psychiatrist would be retained to evaluate the client to determine if the TBI was a significant factor in the client’s commission of the robbery.  A medical records review, interviewing the client, and a comprehensive report would all have to be done to sway the court that diversion is the proper alternative.  Interestingly, the District Attorney, if they do not stipulate to diversion, may retain their own medical expert to refute the claim and could also call the defense medical expert to the stand for cross-examination.  Ultimately diversion will be in the judge’s decision.

          In a Judicial Misdemeanor Diversion, while drug possession cases and mental health issues are still available, other factors besides those relegated to felony cases may be considered.  Generally relegated to low level misdemeanors as stated above.  Interestingly, DUIs do not qualify for misdemeanor diversion, although in 2020 AB3234 lead to some confusion as some judges allowed for misdemeanor diversion in DUI cases.  However, that issue has been put to bed and DUIs are exempt from Judicial Misdemeanor Diversion.

          In Misdemeanor Diversion, the court must find the defendant both eligible and suitable.  Eligible in that the charge is a misdemeanor, not a felony, involving no serious harm to the victim, and a non-violent offense.  Suitability refers to whether the defendant is amenable to the diversion conditions, the likelihood of defendant completing the programs or treatment, defendant’s risk to public safety, and whether diversion will prevent future offenses. 

          So, when a client comes to you with a criminal matter, be it a felony or misdemeanor, consider diversion as another “arrow in your quiver.”

Stephen C. Mancini is a senior partner at Koletsky Mancini Feldman LLP.  He focuses his practice in the areas of criminal defense and family law. He is a California State Bar Certified Family Law Specialist and brings to bear that expertise to every case he and his team take on.