Certain misdemeanor and felony charges in California can be dropped if eligible individuals successfully complete their pretrial diversion programs. In this blog, we will discuss two different types of pretrial diversion programs a defendant can consider, depending on the circumstances of their case. Keep reading to learn more about eligible crimes for misdemeanor diversion and mental health diversion.
Types of Pretrial Diversion Programs
California pretrial diversion programs allow eligible defendants to avoid jail time by completing treatment and education courses. There are a couple types of pretrial diversion programs addressing different treatment concerns:
- low-level misdemeanors diversion, including drug diversion; and
- mental health diversion; and
If a defendant successfully completes their diversion program, the charges against them will be dropped and sealed. If the defendant fails the program, however, the case will carry on where it left off. As a result, pretrial diversion is also called deferred entry of judgment.
California law allows certain nonviolent misdemeanors to be diverted from the criminal justice system through misdemeanor diversion. If the defendant is eligible and chooses diversion, the court will assign a treatment list. Note that the defendant will have to waive their right to a speedy trial if they opt for diversion, but this is because they have signed onto a certain period of time to complete their treatment list in order to drop their chares. Such a list often includes:
- drug treatment;
- alcohol treatment;
- additional classes;
- victim restitution; and
The following offenses can be resolved through misdemeanor diversion:
- possession of toxic substances for “huffing”;
- public intoxication;
- solicitation of a crime to fuel personal narcotic use;
- possession of an open container of marijuana in a motor vehicle;
- possession of a controlled substance;
- possession of a controlled substance;
- unlawful possession of marijuana;
- unlawful cultivation of marijuana for personal use;
- possession of drug paraphernalia;
- aiding or abetting the unlawful use of a controlled substance;
- having or using a forged prescription to get controlled substances for personal use;
- unlawful possession of prescription sedatives;
- possession of methamphetamines for personal use; and
- being under the influence of a controlled substance.
Be aware that to be eligible for drug diversion or misdemeanor diversion, all of the following conditions must be met:
- the defendant has not been convicted of a crime that is ineligible for diversion under California law 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 California law; and
- the defendant has not had a felony conviction in the last 5 years.
Mental Health Diversion
Another diversion program in California is mental health diversion, which allows people who have mental health disorders to get treatment if they have been charged with a crime. Note that this type of diversion program is new in California and came into effect in June of 2018. Mental health treatment plans have to be approved by the court, and the court will likely require:
- therapy sessions;
- counseling; and
- drug treatment.
A mental health diversion treatment can last up to 2 years, and the defendant can receive either inpatient or outpatient treatment. As with misdemeanor diversion, defendants who complete their mental health treatment can have their charges dismissed and sealed.
Most crimes – felonies and misdemeanors – are eligible for mental health diversion. However, there are crimes ineligible for mental health diversion:
- voluntary manslaughter;
- assault with intent to commit rape, sodomy, or oral copulation;
- any crime that would require the defendant, if convicted, to register as a sex offender (except for indecent exposure);
- sex in concert with another;
- lewd acts involving children under 14;
- continuous sexual abuse of a child; and
- certain acts of terrorism.
Keep in mind that failure to complete treatment will trigger a hearing, where the court will decide whether to modify treatment, end diversion and reinstate the underlying criminal charges, or put the defendant under the care of a conservator.
Some examples of ways a defendant can fail their treatment plan are:
- the defendant is charged with a new felony or new misdemeanor that shows a violent tendency;
- the defendant commits a criminal offense that makes them unsuitable for diversion; or
- a qualified mental health expert reports to the court that the defendant’s performance in their treatment plan is not satisfactory or they are gravely disabled.
Questions About Eligibility? Let Us Help.
If you have been charged with a misdemeanor or felony crime in California, you may be able to resolve your charges by entering into a pretrial diversion program. Successful completion of a treatment program, whether misdemeanor diversion or mental health diversion, can help to drop the charges against you. Speak with a legal professional to determine your eligibility depending on the specific facts of your alleged offense.
Schedule a case evaluation with Corrigan Welbourn Stokke, APLC today for more information!