Diversion for veterans

"The primary objectives of military diversion are for the court to consider whether an eligible defendant will benefit from education, treatment, and rehabilitation."

-- Wade v. Superior Court, 33 Cal. App. 5th 694, 705 (2019)

Diversion allows an offender to join a rehabilitation program instead of being prosecuted. It permits an accused to clean up and to avoid a record of criminal conviction. California has two primary statutes that permit diversion for persons suffering from mental health issues: Penal Code Section 1001.36, commonly referred to as mental health diversion, and Penal Code Section 1001.80, referred to as military diversion. While the two statutes have some similar purposes and provisions, they are fundamentally different when veterans are involved. This article will discuss the similarities and differences for veterans.

Eligibility

Mental health diversion requires a recent diagnosis of a disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders by a qualified mental health expert. That's a manual issued by the American Psychiatric Association used by health care professionals; the current version is DSM-5. In addition to a DSM diagnosis, an expert need also opine that the defendant's disorder will respond to mental health treatment. The court must conclude the defendant's condition substantially contributed to the commission of the offense and that the defendant will not pose an unreasonable risk to public safety.

Military diversion's eligibility requirements are profoundly different. There are two requirements. First, the defendant was or is a member of the United States Military. Second, 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. That's it.

Required Nexus

Even though both mental health diversion and military diversion apply to offenders suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, and other mental health problems, military diversion does not require any finding of a connection between the crime and the condition, as mental health diversion does. The only required nexus for military diversion is a connection between the condition and military service. Even then, the required connection is something less than what is required for mental health diversion, which requires the court "is satisfied" that the defendant suffers from an identified disorder and also "is satisfied" that disorder "was a significant factor in the commission of the charged crime."

The statutory language for the nexus in military diversion is "may be suffering from ... as a result of his or her military service." The word "may" has different meanings. California Rules of Court, rule 1.5 (b) says must is mandatory; may is permissive; and, should expresses a preference or a nonbinding recommendation. Our Supreme Court once said: "Although we agree with the trial court that the word 'may' connotes a 'reasonable possibility,' that phrase again encompasses a range of meaning extending from the most unlikely possibility which might influence the views of a reasonable man to events which fall but a hair short of certainty." No Oil v. Los Angeles, 60 Cal. 4th 1086, n.16 (1970).

Proof of Condition

While mental health diversion requires a formal diagnosis, military diversion may be granted if a defendant may be suffering from one of the listed conditions. I can think of five reasons why the California Legislature set such a low threshold.

The first is that veterans have been successfully rehabilitating. One Veterans Treatment Court reported a recidivism rate of 10.4%, whereas California criminals in general have a recidivism rate of from 66% to 76%. One glaring reason for such success is that veterans don't usually carry the same criminal history baggage as many other offenders. Most enter the military with a clean record, but some return to civilian life with problems. The low threshold of "may be suffering from" is understandable with a population that has such a low recidivism rate. It also comports with the legislative goal of allowing veterans who are suffering as a result of their service to get the services they need and to also help them be more easily employed by keeping convictions off their records if they successfully complete the program. Hopkins v. Superior Court, 2 Cal. App. 5th 1275, 1278 (2016).

Second is the need for cultural competency in making a diagnosis of a condition resulting from military service. Civilian mental health professionals usually don't have the necessary experience to discern the importance of the particular experiences and fears encountered by those who served in the military. So why not just require an expert report from the Department of Veterans Affairs? I suggest the Legislature was aware of the severe backlog of needed examinations and medical reports within the VA. Even before the pandemic, there were more than 350,000 pension exams that need to be performed. The pandemic has made matters much worse as the VA has cancelled millions of medical appointments. In light of the many veteran-friendly statutes coming from Sacramento in recent years, it is doubtful that legislators want veterans to wait years to get an official diagnosis before they receive treatment.

Third, the military diversion statute impliedly recognizes the possibility that it may be difficult for a veteran to obtain formal documents, and that a court might want more than the veteran can provide. Thus, the statute permits the court to use existing resources to request an assessment to determine if the accused suffers from one of the conditions as a result of military service.

Fourth, it just makes sense that the entry requirement for military diversion is low. Some veterans compartmentalize their experiences until later. So, a diagnosis may not be made for many years after separation from the service. A Military Times article reported a Desert Storm Marine who watched his best friend get killed. He said: "Just as soon as he hit the sand I had to put it out of my mind. We were under fire and I had other men to keep alive. I tried not to think about it until the war was over. Then it ended and his death hit me like a ton of brinks." And when Vietnam vets started to retire, compartmentalized mental health conditions presented in many of them.

Fifth, as a society we are grateful to those who protect us. If they are hurt or develop a condition as a result of their military service, and then get themselves in trouble with the law, the least we can do is to try to help them find their way back.

Crimes Covered

The mental health diversion statute applies to misdemeanors and felonies, except murder, manslaughter, certain sex crimes and crimes involving weapons of mass destruction. While early versions of the military diversion bill applied to both misdemeanors and "jail felonies," references to felonies were deleted after objections were raised by the California District Attorneys Association. As enacted, the military diversion statute applies to misdemeanors, but not felonies.

Nonetheless, if the rigorous proof requirements for mental health diversion can be met, there may be some circumstances when a veteran accused of a felony requests diversion under the mental health diversion statute.

Besides the fact that mental health diversion may be granted for felons, and military diversion is limited to misdemeanants, there is another big difference between the two regarding which crimes are covered.

Driving Under the Influence

The mental health diversion statute does not mention crimes known as driving under the influence, but pursuant to Vehicle Code Section 23640, a court may neither suspend nor stay proceedings in order to send a defendant to a program if the defendant is charged with a DUI. According to the Vehicle Code, no one charged with a DUI may be diverted, even if the charge is only a misdemeanor. As to mental health diversion, in both Tellez v. Superior Court, 56 Cal. App. 5th 439 (2020), and Moore v. Superior Court (2020, WL 7296513), the courts scrutinized legislative history and determined that the Legislature intended DUI offenses to be ineligible for mental health diversion.

When the military diversion statute first came into effect in 2015, it did not mention DUIs either. Thus, trial courts were faced with one statute that was more specific than another, but when you think about it, which one was more specific? The Vehicle Code statute referred only to crimes of driving under the influence, while the military diversion statute in the Penal Code referred to all misdemeanors. On the other hand, the Vehicle Code statute referred to all offenders, but the military diversion statute covered only present or past members of the military. It is no wonder different results were coming from different courts. See People v. VanVleck, 2 Cal. App. 5th 355 (2016); Hopkins. The California Supreme Court granted review in both cases.

Before California's high court resolved the split, the Legislature amended the military diversion statute. Penal Code Section 1001.80 now specifically states that notwithstanding Vehicle Code Section 23640's prohibition against diversion for those accused of DUIs, veterans accused of misdemeanor DUIs may be diverted.

That statutory amendment was not the end of the DUI saga, however. A trial court in Monterey County found an active duty member of the Army's Special Forces charged with misdemeanor DUI to be eligible for diversion. Nonetheless, the court found him unsuitable for diversion despite the man's lack of a criminal record, explaining driving under the influence is inherently dangerous and that public safety would dictate the case did not come within the military diversion statute. On appeal, in Wade, the appellate court found denial of diversion was an abuse of the trial court's discretion since it conflicted with the Legislature's express intent to include driving under the influence within the scope of the military diversion statute.

Conclusion

Since military diversion for misdemeanors is specifically designed and administered for those who do or have served, and the VA has invested itself in court programs, it is obviously the preferable course for active duty personnel and veterans accused of a misdemeanor.

Because the Legislature has not provided for a specially designed program for service members and veterans accused of a felony, mental health diversion is an option for them. But those programs do not have the advantage of VA personnel, with their knowledge and ability to meet the special needs of veterans. Since mental health diversion is available to veterans accused of a felony, albeit minus the added benefits for veterans, it would not surprise me if the Legislature takes the next step by passing legislation for military diversion for veterans accused of a felony.

It is obvious that, to the extent possible, the Legislature desires that many criminal cases should be diverted rather than prosecuted. Penal Code Section 1001.95 took effect on January 1. It states that superior court judges may offer diversion for almost all misdemeanors "over the objection of a prosecuting attorney."

From the many statutes passed or amended in recent years that are beneficial to veterans (e.g., Penal Code Sections 858 (c-e), 1001.80, 1170.9, 1170.91), it is also apparent that lawmakers want courts to concentrate on the treatment a veteran needs, rather than the nature of the crime charged. 