Fighting For Former And Current U.S. Military Members In San Diego

 

 

Our attorney, Mark L. Deniz, Esq., worked for almost 10 years as a prosecutor. Several years ago, he opened his own practice, as he felt the desire to help people and make a change in his life. In his last five years as a prosecutor, his primary focus was driving under the influence (DUI) cases. As a prosecutor in a jurisdiction with a large military population, it was obvious that some cases were due to post-traumatic stress disorder (PTSD) issues. At that time, prosecutors considered military service and PTSD as mitigating factors.

When Mr. Deniz opened his own practice, he finally had time to sit and talk to people with this condition. He found that they are good people who have an undying love for our country. What separates the clients who have PTSD is that it is not a “bad choice” to drink; it is an escape from a terrible latent condition from which they suffer. Consuming alcohol is an effective way to hide and avoid PTSD symptoms. It is socially acceptable and easy to obtain. There is no stigma when a person uses it. Neil Diamond summed it up perfectly in his verse, “Red Red Wine, go to my head, make me forget that I still need a soul.”

What Is The Military Diversion Program?

The military diversion program is for current or former U.S. military members who have been charged with misdemeanor offenses. Before being admitted to a pretrial diversion program, the defendant must meet the eligibility criteria. The Superior Court of California, County of San Diego has a military diversion informational sheet with information regarding eligibility, the admissions process and more.

More Information On Military Diversion

The court, in collaboration with the offices of the district attorney, city attorney and public defender, has compiled the following information regarding military diversion pursuant to Pen. Code § 1001.80 (hereafter military diversion). This information is for guidance as to best practices only and does not represent strict rules or guidelines.

Our attorney is anxious to see what happens to the bill. In the meantime, he will continue to craft his approach to get veterans the best resolutions in their cases.

Below is more information on military diversion.

A. ELIGIBILITY CRITERIA: What needs to be satisfied to be admitted into military diversion

• Defendant is charged with a misdemeanor or misdemeanors only.
  
• Defendant is a current or former member of the United States military.
  
• Defendant may be suffering from sexual trauma, traumatic brain injury (TBI), PTSD, substance abuse or mental health problems as a result of his or her military service.
  
• Defendant consents to being placed on military diversion and waives his or her rights to a speedy trial.
  
• Defendant has not been granted military diversion for any other case.
  

B. EXCLUSIONARY CONSIDERATIONS

• Defendants with a prior conviction for the same or similar offense are better served by a post-conviction referral to Veterans Treatment Court (Department 16, Central Division) as opposed to a grant of military diversion. Veterans Treatment Court provides a higher level of structure and supervision for participants, while potentially earning a dismissal of the criminal conviction pursuant to Pen. Code § 1170.9.
  
• Multiple grants of military diversion for the same defendant prevent that person from seeking the higher level of treatment available in Veterans Treatment Court, and, as a result, military diversion should only be granted on a one-time basis.
  

C. PROCESS OF ADMISSION

1. Defendant files a Request for Military Diversion; Advisal and Waiver of Rights (SDSC Form #CRM-284) (hereafter, Request for Military Diversion) at the earliest possible time prior to adjudication of the case.

2. Upon receipt of the Request for Military Diversion, the court will vacate any future hearing dates previously set and will set the matter for hearing on the military diversion calendar. A copy of the Request for Military Diversion will be sent by the court to the prosecuting agency with notice of the hearing date.

3. At least 15 calendar days prior to the hearing date, the defense must file and serve on the prosecution a Motion for Military Diversion that includes the alleged factual basis for eligibility for military diversion, including any supporting documentation (e.g., proof of military service and an assessment of the defendant’s condition by a mental health or other appropriate professional) as well as a proposed treatment plan from an appropriate mental health provider (e.g., from the program providers recommended in the assessment). Any opposition or response from the prosecution must be filed and served on the defense at least five calendar days before the hearing date.

If the defendant has already compiled the motion, assessment, treatment plan, and/or other necessary evidence at the time he or she files the Request for Military Diversion, the defendant should request a hearing date approximately three weeks out. Otherwise, the hearing date will be set approximately 60 to 90 days out.

If the defendant is a military veteran, the assessment may be done by a regional Veterans Center (San Diego, San Marcos, or Chula Vista), the VA Mental Health Access Clinic, or the VA Substance Abuse Recovery and Rehabilitation Treatment Program.

4. If at the hearing, the court finds the defendant is not eligible for military diversion or that military diversion is not appropriate, the Request for Military Diversion will be denied, any previously vacated dates will be reset, and the case will continue in due course.

5. If at the hearing, the court finds the defendant is eligible for military diversion and that a grant of military diversion is appropriate, then the court will grant military diversion for a period not to exceed two years, postponing the criminal proceedings for that time period. The court will impose conditions of the diversion program (e.g., treatment programs). Review hearings will be set to show proof of enrollment/compliance. The court will also set the date upon which the case will be dismissed if the defendant successfully completes the diversion program.

SDSC CRM-283 (New 6/15) MILITARY DIVERSION INFORMATION SHEET Pen. Code § 1001.80 Informational Form Page 1 of 2

D. EXAMPLES OF CONDITIONS OF MILITARY DIVERSION

1. Twelve to 24 months of treatment

2. Protective order (JC Form #CR-160) for the duration of the diversion program (DV cases)

3. Fifty-two week Family Recovery Program at a regional Veterans Center (San Diego only) or a probation-certified Domestic Violence Recovery Program (DVRP) (DV cases)

4. First Conviction Program (FCP) and MADD Victim Impact Panel (DUI cases)

5. Random drug and alcohol testing by the treatment provider

6. Substance abuse or other counseling, therapy or treatment as recommended in the assessment and/or treatment plan

7. Written progress reports from care/treatment providers due every 90 days

E. SUCCESSFUL COMPLETION

1. If the defendant has performed satisfactorily during the period of military diversion, the court will dismiss the criminal charges.

2. The arrest will be deemed to have never occurred, except that (1) the Department of Justice will be notified of the disposition of the case, (2) 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 (3) the defendant is still obligated 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 Pen. Code § 830. Defendant must be advised of (2) and (3).

F. UNSUCCESSFUL COMPLETION

If the court finds that the defendant is performing unsatisfactorily in the military diversion program or is not benefitting from the treatment and services provided, the court will set a hearing to determine whether the defendant should be terminated from the military diversion program with the criminal proceedings reinstated.

California’s military diversion program establishes a pretrial diversion program for current and former members of the U.S. military who are charged with a misdemeanor offense. Under Penal Code, Section 1001.80, subdivision (a), the military diversion program applies to a defendant accused of a misdemeanor offense, who was or currently is a member of the United States military, and who may be suffering from sexual trauma, TBI, PTSD, substance abuse or mental health problems as a result of his or her military service. If a defendant meets these criteria, the court may place him or her into a pretrial diversion program.

This is a link to an Eligibility Assessment Resources Guide, the purpose of which is to provide defendants and their counsel with resources that may be able to assist in assessing whether the defendant is eligible to be considered for diversion. These resources are not exhaustive or exclusive. Defendants and their counsel may seek to establish eligibility through other organizations, agencies, and means. A determination that a defendant meets the criteria for eligibility by any person, agency or organization, including those listed above, is not binding on the court and may be subject to a contested evidentiary hearing.

Penal Code 1001.80

(a) This chapter shall apply to a case before a court on an accusatory pleading alleging the commission of a misdemeanor offense if both of the following apply to the defendant:

(1) The defendant was, or currently is, a member of the United States military.

(2) 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. The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.

(b) If the court determines that a defendant charged with an applicable offense under this chapter is a person described in subdivision (a), 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).

(c) 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.

(d) 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 an 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 (h)

(e) 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.

(f) 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.

(g) 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.

(h) 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.

(i) 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 his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (j). A record pertaining to an arrest resulting in the successful completion of a diversion program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(j) The defendant shall be advised that, regardless of his or her 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 (i), this section does not relieve him or her 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.

(k) (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.

(l) Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor 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.

What Is California Penal Code 1001.80 Military Diversion?

Our nation’s men and women in uniform experience a unique set of personal and physical challenges. The California court system recognizes this and has authorized military diversion as an available sentencing alternative for some veterans and active military men and women. If you are a man or woman in the military and you are distressed from psychological problems, then you might qualify for military diversion. In simple terms, you would be subject to the rules and conditions of military diversion instead of being sentenced to jail or prison. Military diversion is codified in the California law books under Penal Code 1001.80. It is considered a type of pretrial diversion. In other words, instead of going through the normal criminal procedure process, you will be required to obtain mental health treatment.

California Penal Code 1001.80 Military Diversion is only available for those who are facing misdemeanor charges. In addition, you must be either a veteran or an active-duty man or woman in the military. Under California Penal Code 1001.80 Military Diversion, you are not required to make a plea of guilty or nolo contendere. Instead, the court will push back your criminal hearings while you complete the terms and conditions of your military diversion program. This usually consists of drug or mental health treatment or educational programs.

If you finish all the terms and conditions of your military diversion program, the charges you were facing will be discharged. However, if you do not complete the terms and conditions of your military diversion program, the criminal hearing process will unfreeze, and you will face criminal charges as before.

How Do You Qualify For California Penal Code 1001.80 Military Diversion?

You may qualify for California Penal Code 1001.80 Military Diversion if, due to your time in the military, you experienced PTSD, sex-related distress, brain damage, drug abuse or other psychological issues. It is important to note that the problems you are facing must have arisen from your time in the military. Also, you only qualify for military diversion if you have never been convicted of a crime in the past. If you have a previous conviction on your criminal record, then you will probably be directed to Veterans Court, which is discussed at length below. Veterans Court is a more regulated and supervised process than military diversion.

Remember, to qualify for California Penal Code 1001.80 Military Diversion, you must be charged with a misdemeanor(s) only. If you are charged with a felony, then you do not qualify for military diversion. Offenses commonly seen with military diversion include the following: driving under the influence, possession of illicit substances, battery and/or assault.

To get California Penal Code 1001.80 Military Diversion, your California criminal defense attorney will have to make a formal request with the judge. In many cases, the judge may require a formal review of the situation to help them determine whether to grant military diversion. If the judge decides that you qualify for it, then you will be submitted into the pretrial diversion program. For a maximum of two years, the criminal hearing process will be frozen while you complete the terms and conditions of the California Penal Code 1001.80 Military Diversion program. Again, this typically consists of medical or psychological treatment.

What Treatment Plans Are Available Under California Penal Code 1001.80 Military Diversion?

The judge will decide whether you should be subjected to a federally based or a locally based treatment plan. The judge will consider programs that have a high success rate in treating veterans or men or women in the military. The programs may be sponsored by the Department of Defense or the Department of Veterans Affairs. If not, they might choose a program that collaborates with these departments to make sure you get the best possible services and opportunities available to you. There is also a chance that the judge might direct you to the local mental health governmental unit. This will only happen if the local mental health governmental unit consents to oversee your medical and psychological treatment, to communicate and coordinate with your local veteran’s service manager and to file periodical reports with the court handling your case.

In your California Penal Code 1001.80 Military Diversion treatment plan, the court can require you to meet all sorts of terms and conditions. Some examples of military diversion terms and conditions include the following: attend regular treatment meetings, meet with a counselor or therapist, submit to drug or alcohol testing, and turn in regular progress reports from the agencies or organizations overseeing your care.

Usually, a military diversion treatment plan can take an average of one to one-and-a-half years. However, it can take up to two years. California Penal Code 1001.80 Military Diversion does not allow the diversion to take longer than two years.

Keep in mind that the judge has the option to prematurely end your military diversion program. They will review the periodical reports sent to the court and make a determination whether to terminate your program based on the following: You are not satisfactorily completing the terms and conditions of your California Penal Code 1001.80 Military Diversion or you are not improving from the treatment that is being provided for you. In the situation the judge decides to prematurely end your California Penal Code 1001.80 Military Diversion program, the criminal hearing process will unfreeze, and you will face the criminal charges as before.

What Happens To Your Arrest History Under California Penal Code 1001.80 Military Diversion?

As discussed above, if you complete all the terms and conditions of your California Penal Code 1001.80 Military Diversion program, then the charges you originally faced will be discharged. Also, if you successfully complete the military diversion, the arrest related to the charges against you cannot be used to deny you a job, license or certificate. You will be able to honestly say – when asked about your criminal history – that you were never arrested or diverted for the relevant charges/offense. However, there is an exception if you are applying to be a police officer. In that case, you are required by law to reveal the arrest on an application if it comes up. Furthermore, the federal justice department is allowed to reveal the arrest to an agency supervising the hiring process for policemen or policewomen.

Also, if you are facing charges related to driving, successfully completing the California Penal Code 1001.80 Military Diversion program may not affect your standing with the Department of Motor Vehicles (DMV). The DMV has the power to suspend or restrict your driving privileges outside of the power of the criminal justice system. Hence, if you are charged with DUI, you might still lose your license. However, our California criminal defense attorney can help represent you at an administrative DMV hearing. At this hearing, he can fight for your driving privileges to be reinstated as quickly as possible.

Post-Traumatic Stress Disorder: A California Criminal Defense

If available, our lawyer can argue PTSD as a full legal defense to the charges you’re facing. It falls under the insanity defense. Additionally, he can try to reduce the sentence you’re facing if you are convicted of a crime. The judge will consider PTSD as a factor in reducing the punishments they might issue.

Attorney Deniz can win your case on the PTSD defense if he can prove that the crime was committed during a period of time when you were legally insane. There are two separate facts that he must show to qualify you as legally insane. At the time of the incident in which a crime was alleged, our attorney must show that you did not comprehend the nature of your conduct. Secondly, he must show that you could not tell the difference between the right conduct and wrong conduct. This must be proven according to a particular level of certainty. For California criminal cases, a defense must be proven to the standard of a preponderance of the evidence. This means that a jury must conclude that it was more likely than not that, at the time of the incident in which the alleged crime was committed, you were legally insane. If this is shown, this does not mean that you get to walk away completely free. The judge will not send you to jail or prison, but they will require that you be committed into a hospital that treats psychological issues.

Evidence of PTSD can be used for more than just as a legal defense. At sentencing, it can be used to mitigate the punishment you receive. Our California criminal defense attorney will need to demonstrate that your psychological suffering led to the crime that took place. As a result, the court may lessen the punishment it planned on giving you, meaning you may get less prison time, a smaller period of probation or even the option of getting treatment instead of going to prison.

Prior to opening his law firm, attorney Deniz was a deputy district attorney for almost 10 years with an intimate knowledge of the various consequences a conviction may cause. He will aggressively defend your case by exploring every angle and argument to ensure that you have the best defense possible. Contact The Law Offices of Mark Deniz APLC at 858-429-9982 to get the ball rolling.