In most cases, domestic violence charges are not eligible for standard judicial diversion in California. However, there is one important exception: mental health diversion under Penal Code 1001.36.
California offers several diversion programs designed to allow eligible defendants to avoid traditional prosecution and a criminal conviction. These programs can result in dismissal of charges upon successful completion.
But domestic violence cases are treated differently under California law.
Understanding whether you qualify for diversion requires a close look at the specific statutes involved.
Your best chance for a favorable outcome is with an experienced criminal defense attorney at the Hedding Law Firm in Los Angeles. To schedule a consultation, call (866) 986-2092 or use the contact form here.
Judicial Diversion Under Penal Code 1001.95
Penal Code 1001.95 gives judges discretion to grant misdemeanor diversion in certain cases. If diversion is granted and completed successfully, the charges are dismissed.
However, the statute specifically excludes certain offenses from eligibility.
Domestic Violence Is Excluded
Under Penal Code 1001.95, diversion is not available for:
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Offenses involving domestic violence
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Crimes requiring sex offender registration
Domestic violence is defined broadly and includes charges involving:
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Spouses or former spouses
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Cohabitants
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Dating partners
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Family members
This means that standard judicial diversion under PC 1001.95 is generally not an option in domestic violence cases.
Mental Health Diversion Under Penal Code 1001.36
Although domestic violence is excluded from general judicial diversion, mental health diversion under Penal Code 1001.36 may still be available in qualifying cases.
This form of diversion applies to both misdemeanors and felonies, provided the offense is not specifically excluded.
What Is Mental Health Diversion?
Mental health diversion allows eligible defendants with qualifying mental health disorders to enter treatment instead of proceeding through traditional criminal prosecution.
If the program is successfully completed, the court dismisses the charges.
Eligibility Requirements Under Penal Code 1001.36
To qualify for mental health diversion, the defendant must meet strict criteria.
Diagnosed Mental Health Disorder
The defendant must have a diagnosed mental disorder listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).
Qualifying conditions may include:
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Bipolar disorder
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Schizophrenia
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Schizoaffective disorder
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Post-traumatic stress disorder
Certain disorders, such as antisocial personality disorder and pedophilia, are excluded.
A qualified mental health expert must provide documentation of diagnosis or treatment within the last five years.
The Mental Disorder Was a Significant Factor
The court must determine that the mental health condition was a significant factor in the commission of the alleged domestic violence offense.
The defense must provide credible evidence linking the mental disorder to the conduct.
The court may review:
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Medical records
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Psychological evaluations
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Arrest reports
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Witness statements
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Treatment provider statements
If the court finds no clear and convincing evidence that the disorder was not a contributing factor, this element may be satisfied.
Suitability for Treatment
The court must determine that:
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The defendant's symptoms will respond to treatment
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The defendant consents to treatment
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The defendant agrees to comply with program requirements
Treatment may be outpatient or inpatient depending on the circumstances.
No Unreasonable Risk to Public Safety
The court must find that granting diversion would not pose an unreasonable risk of danger to public safety.
This determination considers:
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Criminal history
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The facts of the case
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Expert opinions
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Risk assessments
Are All Domestic Violence Charges Eligible for Mental Health Diversion?
No.
Certain offenses remain excluded even under Penal Code 1001.36.
Examples of excluded offenses include:
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Certain sex offenses
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Offenses requiring sex offender registration
If the domestic violence charge involves particularly egregious violence or falls within statutory exclusions, diversion may not be available.
The Process for Requesting Mental Health Diversion
Filing a Motion
Your attorney must file a formal motion requesting diversion.
This motion must include supporting documentation of:
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Mental health diagnosis
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Causal link to the offense
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Suitability for treatment
Court Hearing
The prosecution may oppose the motion.
The judge will evaluate the evidence and decide whether to grant diversion.
Duration of Diversion
If approved:
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Misdemeanor diversion may last up to one year
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Felony diversion may last up to two years
Treatment providers report progress to the court.
If successfully completed, the charges are dismissed.
What Happens After Successful Completion?
If you complete mental health diversion:
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The charges are dismissed
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The case is closed
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The arrest may be sealed
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You avoid a criminal conviction
Failure to comply with treatment conditions can result in reinstatement of criminal proceedings.
Frequently Asked Questions
Is domestic violence eligible for diversion in California?
Not under general judicial diversion (PC 1001.95). However, mental health diversion (PC 1001.36) may be available if strict criteria are met.
Does having a mental health diagnosis automatically qualify me?
No. The disorder must have significantly contributed to the alleged offense and you must meet all statutory requirements.
Can felony domestic violence qualify?
In some cases, yes, if the offense is not excluded and all eligibility criteria are satisfied.
Who decides whether I qualify?
The judge makes the final decision after reviewing evidence from both sides.
Why Legal Representation Matters
Domestic violence cases are prosecuted aggressively in California. Diversion is never automatic, and mental health diversion requires careful legal preparation.
A skilled criminal defense attorney can:
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Evaluate whether your case qualifies
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Retain qualified mental health experts
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Present persuasive evidence to the court
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Argue why treatment serves justice better than prosecution
If you are facing domestic violence charges in California and believe mental health played a role, early legal intervention can make a critical difference.
The Hedding Law Firm is here to help. Schedule your consultation today. Our law firm is based in Los Angeles, CA
