California has two statutes written for a person whose service left an injury that a charge sheet does not show. One works before conviction; the other works at sentencing and after. Both turn on the same finding, and both are meant to lead to treatment rather than custody.
The short answer: two routes. Military diversion — "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" — is available to a defendant who "was, or currently is, a member of the United States military" and, for a misdemeanour, "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."¹ It has long covered misdemeanours; since SB 1025 (Stats. 2024, Ch. 924, in effect from 1 January 2025) it also covers most felonies, with an added condition: for a felony, the condition must have been "a significant factor in the commission of the charged offense," which the court "shall find… unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor."¹ 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" for "no longer than two years"; "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," and "the arrest upon which the diversion was based shall be deemed to have never occurred."¹ Section 1170.9 is the sentencing statute: for a convicted defendant who alleges the offence resulted from the same service-related conditions, the court "shall, prior to sentencing, make a determination" whether that is so, "shall consider" it "as a factor in favor of granting probation," may, if it grants probation, order treatment as a condition for no longer than the custody term the defendant would otherwise have served, and — after successful treatment on probation — may terminate probation early, reduce an eligible felony to a misdemeanour, and dismiss the case.²
Who qualifies for diversion
The threshold is service, not discharge status: "The defendant was, or currently is, a member of the United States military."¹ The second element is a condition that "may" exist — the statute does not require a diagnosis in hand: "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."¹ "The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant."¹
For a felony, add the link between the condition and the offence: "the defendant's condition was a significant factor in the commission of the charged offense."¹ The statute puts a thumb on the scale — "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" — and lets the court look at "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."¹
Excluded charges: "Murder or voluntary manslaughter"; an offence requiring sex-offender registration (other than indecent exposure); rape; lewd acts on a child under 14; assault with intent to commit rape, sodomy or oral copulation; rape or sexual penetration in concert; continuous sexual abuse of a child; and specified weapons-of-mass-destruction offences.¹ A misdemeanour DUI can be diverted; other DUI offences cannot, and DMV licence action is unaffected.¹
What diversion looks like
The program must "utilize existing resources available to current or former members of the United States military to address and treat those suffering from" the listed conditions.¹ 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," and "shall give preference to a treatment program that has a history of successfully treating veterans… including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs."¹ The court and 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."¹ Veterans' mental health care in California: eligibility, Vet Centers, and cost →
Progress reports go to the court and the prosecutor "not less than every six months."¹ If the court thinks the defendant "is performing unsatisfactorily in the assigned program, or… is not benefiting from the treatment and services provided," it holds a hearing after notice, and "may end the diversion and order resumption of the criminal proceedings."¹
Firearms. The prosecution may ask the court to bar the defendant from possessing a firearm during diversion, but must prove "by clear and convincing evidence" both that the defendant "poses a significant danger of causing personal injury to themselves or another" with a firearm and that the prohibition "is necessary to prevent personal injury" because "less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant."¹ If the prosecution does not meet that burden, "the court shall not order" the prohibition.¹ Therapy and gun ownership in California →
What completion does
"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."¹ Then: "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," and the record "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."¹ The one carve-out: the arrest may be disclosed by the Department of Justice in response to a peace-officer application request, and must be disclosed "in response to a direct question contained in a questionnaire or application for a position as a peace officer."¹ Does diversion clear my record? →
The sentencing statute: 1170.9
If the case goes to conviction, section 1170.9 applies to "any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that the person committed the offense as a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military."² The court "shall, prior to sentencing, make a determination" whether the defendant was or is a service member and "may be suffering" from those conditions "as a result of the person's service," and may request an assessment.²
If so, and the defendant "is otherwise eligible for probation, the court shall consider the circumstances described in subdivision (a) as a factor in favor of granting probation," and, "if the court places the defendant on probation," it "may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that period which the defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate treatment program exists."² A defendant committed to residential treatment "shall earn sentence credits for the actual time the defendant serves in residential treatment."² The same VA preference applies.²
Restorative relief. The statute declares that "it is in the interests of justice to restore a defendant who acquired a criminal record due to a mental health disorder stemming from service in the United States military to the community of law abiding citizens."² At a public hearing on at least 15 days' notice, if the court finds the defendant was granted probation as such a person, "is in substantial compliance with the conditions of that probation," "has successfully participated in court-ordered treatment," "does not represent a danger to the health and safety of others," and "has demonstrated significant benefit from court-ordered education, treatment, or rehabilitation" sufficient to show that relief is in the interests of justice, it may, by written order: "Deem all conditions of probation to be satisfied… and terminate probation prior to the expiration of the term" (victim restitution excepted); "Reduce an eligible felony to a misdemeanor" — a wobbler; and grant dismissal relief under section 1203.4.² A dismissal "releases the defendant from all penalties and disabilities resulting from the offense of which the defendant has been convicted in the dismissed action," with listed exceptions — among them sex offences, the DMV's use of the conviction, the DNA sample, and firearms: dismissal "does not authorize a defendant to own, possess, or have in the defendant's custody or control any firearm."²
Which one, and when
Diversion can be sought at any point "from the point at which the accused is charged until adjudication"; in practice counsel raises it early, at or soon after arraignment. Section 1170.9 is raised before sentencing, and again during probation, once treatment has been completed, to seek early termination and dismissal. A defendant who was not offered diversion, or who was ineligible for it, still has 1170.9. Ask defence counsel two questions by section number: "Have you evaluated me for 1001.80 diversion?" and "Will you raise 1170.9 before sentencing?" Both statutes let the court request an assessment — "using existing resources" in one, "through existing resources" in the other; a VA or Vet Center record of the condition shortens that step.
Q&A
Q: I was discharged other than honorably. A: Both statutes ask whether the defendant "was, or currently is, a member of the United States military."¹ ² Neither conditions eligibility on discharge status; VA treatment eligibility is a separate question. Veterans' care and the discharge rules →
Q: My charge is a felony. Is that a bar? A: Not since 2025, unless the felony is one of the listed exclusions; the added requirement is that the condition was "a significant factor in the commission of the charged offense," which the court must find unless there is clear and convincing evidence otherwise.¹
Q: Do I have to admit guilt? A: Diversion postpones prosecution; the statute requires the defendant's consent and a speedy-trial waiver, not a plea.¹
Q: What does the two years mean if my treatment takes longer? A: The diverted period "shall be no longer than two years."¹ The statute caps the diversion period, not the treatment; nothing stops treatment continuing privately after the charges are dismissed.
Our therapist directory: See its current status →
Psychiatric care in county jail: Can my relative get psychiatric care in county jail? →
Sources
- Cal. Penal Code §1001.80 — (a) scope, "a misdemeanor or felony offense not set forth in subdivision (o)"; (b)(1)–(2)(A) the misdemeanour conditions as quoted; (c)(1)–(2)(A) the felony conditions, "a significant factor in the commission of the charged offense"; (c)(2)(B) the presumption "unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor"; (c)(2)(C) the evidence the court may consider; (b)(2)(B) and (c)(2)(D) the assessment "using existing resources"; (d) placement "with the consent of the defendant and a waiver of the defendant's speedy trial right"; (e) unsatisfactory performance, the hearing, and "at the end of the period of diversion, the criminal charges shall be dismissed"; (g) the treatment-program assessment as quoted; (h) the VA/DoD preference; (i) collaboration with the state and federal Departments of Veterans Affairs; (j) "no longer than two years" and reports "not less than every six months"; (k) "the arrest upon which the diversion was based shall be deemed to have never occurred" and the employment/licence sentence; (l) the peace-officer disclosure; (m) the definition of "pretrial diversion" and the use of military resources; (n) the DUI rule; (o) the excluded offences; (p) the firearm prohibition and the prosecution's burden — california.public.law. Per its Legislative Counsel's Digest, SB 1025 (Stats. 2024, Ch. 924, chaptered 29 September 2024) added felony offences, the significant-factor finding and the firearm-prohibition procedure — legiscan.com.
- Cal. Penal Code §1170.9 — (a) the pre-sentencing determination as quoted; (b)(1) "a factor in favor of granting probation"; (b)(2) "If the court places the defendant on probation, the court may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that period which the defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate treatment program exists"; (d) the "federal or community-based treatment service program" language; (e) "shall earn sentence credits for the actual time the defendant serves in residential treatment"; (f) the VA/DoD preference; (h)(1) the interests-of-justice declaration and the five findings, including "does not represent a danger to the health and safety of others" and "has demonstrated significant benefit from court-ordered education, treatment, or rehabilitation to clearly show that granting restorative relief pursuant to this subdivision would be in the interests of justice"; (h)(3) the three orders, including "Reduce an eligible felony to a misdemeanor pursuant to subdivision (b) of Section 17"; (h)(4)(A) "releases the defendant from all penalties and disabilities resulting from the offense of which the defendant has been convicted in the dismissed action"; (h)(4)(C)–(E) the non-disclosure, sealing and bar-to-future-action provisions; (h)(4)(B) and (F)–(I) the exceptions, including (G) the DMV rule, (H) the DNA sample, and (I) "does not authorize a defendant to own, possess, or have in the defendant's custody or control any firearm" — california.public.law.
Paid for by participating therapists. Inclusion is computed from availability data — never purchased. No ads, no data sold.