In what may be a first in the State of California, MAJ’s James Shore and Alexander Bukac persuaded a Santa Clara Superior Court Judge to suspend criminal proceedings and grant a former military and law enforcement criminal defendant admission to the Military Diversion Program for a felony allegation of Penal Code Section 149.

Diversion programs, generally, permit courts to suspend criminal proceedings and instead mandate participation in appropriate treatment options – after which, if successfully completed, the criminal charges are dismissed without conviction. California’s Military Diversion Program (Penal Code § 1001.80), originally enacted in 2015, applies to a defendant who is or was a member of the United States military and who “may be suffering from sexual trauma, traumatic brain injury,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.” Historically, the language of the statute specifically limited Military Diversion to only misdemeanor offenses. As of January 1, 2025, however, the statute was amended to make qualifying veterans diversion eligible for most felony offenses as well.

As it stands now, a veteran is eligible for diversion for misdemeanor charges simply by demonstrating they suffer from any of the enumerated service-connected health conditions. Although eligibility for diversion for felony offenses also requires a finding that the veteran’s service-connected health condition was a “significant factor” in the commission of the offense, Shore and Bukac made a strong argument that the statute requires the court to presume that connection absent clear and convincing evidence to the contrary. Even if the presumption is not mandatory, the statute is clear that the court can rely upon expert testimony, medical records, or the defendant’s own mental health treatment provider to reach that conclusion.

Most importantly, upon a veteran’s successful completion of the prescribed term of diversion, the criminal charges are dismissed and the underlying arrest is deemed to have never occurred. Thereafter, the veteran’s criminal history remains unaffected, and neither the arrest, the prior prosecution, or the grant of diversion are obligated to be disclosed, except in the context of an application for a peace officer position.

The recent amendments to the Military Diversion statute reflect the Legislature’s clear intention to make the benefits of diversion more accessible to military veterans. MAJ’s client, an Air Force veteran who served in Iraq, was admitted to diversion for two misdemeanor charges and a felony charge. He may be the first beneficiary of the recent amendments – but hopefully won’t be the last.

If you have any questions about this case, please contact James Shore or Alex Bukac in our San Rafael office.