(a)This chapter shall apply to a case before a court on an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (o) to a defendant who is eligible based on the criteria set forth in this chapter.
(b)A defendant charged with a misdemeanor is eligible for diversion if both of the following apply:
(1)The defendant was, or currently is, a member of the United States military.
(2)
(A)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 their military service.
(B)The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.
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(a)
This chapter shall apply to a case before a court on an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (o) to a defendant who is eligible based on the criteria set forth in this chapter.
(b)
A defendant charged with a misdemeanor is eligible for diversion if both of the following apply:
(1)
The defendant was, or currently is, a member of the United States military.
(2)
(A)
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 their military service.
(B)
The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.
(c)
A defendant charged with a felony offense not set forth in subdivision (o) is eligible if both of the following apply:
(1)
The defendant was, or currently is, a member of the United States military.
(2)
(A)
The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or a mental health problem as a result of their military service, and the
defendant’s condition was a significant factor in the commission of the charged offense.
(B)
The court shall find that the defendant’s condition was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
(C)
A court may consider any relevant and credible evidence, including, but not limited to, a police report, preliminary hearing transcript, witness statement, statement by the defendant’s mental health treatment provider, medical record, or record or report by qualified medical expert, that the defendant displayed symptoms consistent with the condition at or near the time of the offense.
(D)
The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.
(d)
If the court determines that a defendant charged with an applicable offense under this chapter is a person described in subdivision (b) or (c), 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).
(e)
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.
(f)
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 (5) of subdivision (b) 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 (5) of subdivision (b) 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 (j).
(g)
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.
(h)
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.
(i)
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.
(j)
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.
(k)
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 their prior criminal record that they were not arrested or diverted for the offense, except as specified in subdivision (l). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the defendant’s consent, be used in a way that could result in the denial of any employment, benefit, license, or certificate.
(l)
The defendant shall be advised that, regardless of their 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 (k), this section does not relieve them 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.
(m)
(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.
(n)
(1)
Notwithstanding any other law, including Section 23640 of the Vehicle Code, an 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.
(2)
A defendant shall not be placed in a pretrial diversion program in accordance with this section for any offense related to driving under the influence other than those identified in paragraph (1).
(o)
A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(1)
Murder or voluntary manslaughter.
(2)
An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(3)
Rape.
(4)
Lewd or lascivious act on a child under 14 years of age.
(5)
Assault with intent to commit rape, sodomy, or oral copulation in violation of Section 220.
(6)
Commission of rape or sexual penetration in concert with another person in violation of Section 264.1.
(7)
Continuous sexual abuse of a child in violation of Section 288.5.
(8)
A violation of subdivision (b) or (c) of Section 11418.
(p)
(1)
The prosecution may request an order from the court that
the defendant be prohibited from controlling, owning, purchasing, possessing, or receiving a firearm until they successfully complete diversion because they are a danger to themselves or others pursuant to subdivision (i) of Section 8103 of the Welfare and Institutions Code.
(2)
The prosecution shall bear the burden of proving, by clear and convincing evidence, both of the following are true:
(A)
The defendant poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm.
(B)
The prohibition is necessary to prevent personal injury to the defendant or another person because less restrictive alternatives either have been tried and found to
be ineffective or are inadequate or inappropriate for the circumstances of the defendant.
(3)
(A)
If the court finds that the prosecution has not met that burden, the court shall not order that the person is prohibited from controlling, owning, purchasing, possessing, or receiving a firearm.
(B)
If the court finds that the prosecution has met the burden, the court shall order that the person is prohibited, and shall inform the person that they are prohibited, from controlling, owning, purchasing, possessing, or receiving a firearm until they successfully complete diversion because they are a danger to themselves or others.
(4)
An order imposed pursuant to this subdivision shall be in effect
until the defendant has successfully completed diversion or until their firearm rights are restored pursuant to paragraph (4) of subdivision (g) of Section 8103 of the Welfare and Institutions Code.