Not through California’s court-initiated misdemeanor diversion law, which excludes offenses involving domestic violence no matter which code section is charged. Mental health diversion and military diversion do not exclude domestic violence charges, but each has its own eligibility requirements and the judge decides whether to grant it. If no diversion is granted and you are placed on probation, California sets mandatory minimum domestic violence probation terms.

Court-initiated misdemeanor diversion is closed to domestic violence

Penal Code section 1001.95 lets a judge offer diversion in a misdemeanor case, even over a prosecutor’s objection, for up to 24 months, and requires the judge to dismiss the case if the defendant complies with the terms. Subdivision (e)(2) then carves out an exception: a defendant may not be offered this diversion for “any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700” of the Penal Code.

Both of those definitions describe abuse committed against a listed person, such as a spouse, cohabitant, dating partner, or co-parent. The exclusion therefore turns on what happened and to whom, not on which code section appears on the complaint. The Family Code’s definition of abuse is also broad: it covers conduct a court could prohibit in a restraining order under Family Code section 6320, such as destroying personal property (Family Code section 6203; section 6320). So a charge other than domestic battery or corporal injury, such as vandalism of a partner’s property, can fall within the exclusion.

A felony-to-misdemeanor reduction does not open this door

Section 1001.95 only ever applies to misdemeanors in the first place. If a felony corporal injury charge under section 273.5 is negotiated down to misdemeanor domestic battery under section 243(e)(1), the reduced charge still involves domestic violence against a listed person, so the (e)(2) exclusion still applies.

Two other diversion programs are not excluded by name

Penal Code section 1001.36 (mental health diversion) and Penal Code section 1001.80 (military diversion) each list the charges they exclude: murder or voluntary manslaughter, offenses requiring sex offender registration other than indecent exposure, rape, a lewd act on a child under 14, and a few other listed offenses. Domestic violence offenses are not on either list, and both programs can apply to misdemeanors and felonies.

Mental health diversion requires a diagnosed mental disorder listed in the current Diagnostic and Statistical Manual of Mental Disorders (antisocial personality disorder and pedophilia are excluded), shown by a diagnosis or treatment within the last five years by a qualified mental health expert. Once that is shown, the court must find the disorder was a significant factor in the offense unless there is clear and convincing evidence that it was not. The court must also find the defendant suitable: an expert’s opinion that the symptoms would respond to treatment, the defendant’s consent and waiver of a speedy trial, an agreement to comply with treatment, and no unreasonable risk of danger to public safety if treated in the community (1001.36(b), (c)).

Military diversion requires that the defendant was, or currently is, a member of the United States military and may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service. For a felony, the condition must also have been a significant factor in the offense, which the court must find unless there is clear and convincing evidence that it was not (1001.80(b), (c)). The defendant must consent and waive the right to a speedy trial (1001.80(d)).

Neither program is automatic. Each statute leaves the grant to the court’s discretion, and a diagnosis or service record does not by itself decide the request. Each depends on facts that have nothing to do with the domestic relationship and may or may not be present in your case.

What happens without diversion: mandatory probation terms

If diversion is not available or not granted and the court places you on probation, Penal Code section 1203.097 sets minimum terms whenever the victim is someone Family Code section 6211 lists. They include at least 36 months of probation, a criminal protective order and notice to the victim. Subdivision (a)(6) requires successful completion of a batterer’s program, or, if none is available, another appropriate counseling program designated by the court. The program must last at least one year, with progress reports to the court every three months or less. The requirements must be read with the statute’s express alternatives and exceptions; an unavailable batterer’s program does not let a person choose or skip counseling on their own.

What to check before assuming diversion is available

  • Whether the charged conduct involves abuse against someone listed in Family Code section 6211 or Penal Code section 13700(b). If it does, 1001.95 is closed regardless of the specific statute charged.
  • Whether a documented mental health diagnosis, or military service with a related condition, actually exists, since those facts, not the charge itself, are what mental health or military diversion depend on.
  • What probation under 1203.097 would require if diversion is not granted, including the 36-month minimum and the batterer’s program or the court-designated alternative when none is available.
  • Whether the charge could be resolved in a way that changes this analysis, which is a case-specific negotiation question with no automatic result.

Which of these paths fits, if any, depends on the charge, the facts, and your history. The Law Offices of David S. Chesley can review which options are realistic in your case. Call (800) 755-5174.