4th Appellate District, Division 3
Eileen C. Moore
Associate Justice
California Courts of Appeal
In both collaborative courts and diversion, veterans accused of crimes are given treatment instead of incarceration. The primary purpose of both is rehabilitation rather than punishment by addressing the root cause of criminal behavior. Yet the two methods have marked distinctions.
What might be different between the two types of programs is the extent of authority a court has over a veteran defendant in a collaborative court versus a veteran defendant who has been ordered into diversion.
What is a collaborative court?
Collaborative courts provide an avenue for defendants to receive court supervised treatment under formal supervised probation. They use evidence-based practices and offer treatment and rehabilitation services with intensive judicial supervision. See, People v. Superior Court (2025) 112 Cal.App.5th 854.
A team of professionals works within the courts to address the needs and risks of each individual defendant and provide support for each. The team is headed by the judge, and includes a team coordinator, prosecutor, defense lawyer, probation officer, mental health professionals and others.
Collaborative courts specific to veterans are known as Veterans Treatment Courts, VTCs. The goal of these courts is to resolve criminal cases through treatment and support. In these courts, veterans take part in a program tailored to address their specific needs. As part of the program, participants meet frequently with a judicial officer, other veterans, treatment providers, mentors, and support teams. The whole process occurs under frequent and regular court supervision. Penal Code § 1170.9.
A huge asset to VTCs is the assistance of the United States Department of Veterans Affairs, VA. Congress enacted the Veterans Treatment Court Coordination Act. The Act directs the Secretary of the VA and the Bureau of Justice Assistance to provide grants and technical assistance to courts. Thus, representatives of the VA are present on the collaborative teams of VTCs. Public Law 116-153
In VTCs, the veteran defendant is required to be convicted of a probation-eligible crime to qualify for entrance. If successful in the treatment program, the veteran defendant benefits from a statutory restorative process, whereby the court has the authority to seal records, and/or reduce the charges, and dismiss the underlying accusation or information as well as the conviction. Penal Code §§ 1170.9 (b),1203.4.
What is diversion?
Generally, pretrial diversion is the suspension of criminal proceedings for a prescribed period of time, subject to certain conditions. When a defendant successfully completes a diversion program, the criminal charges are dismissed and the defendant may legally answer that he or she has never been arrested for -- or charged with -- the diverted offense, with some exceptions. People v. Frahs (2018) 27 Cal.App.5th 784, 788.
Military diversion represents a relatively new addition to the state's diversion programs. It generally authorizes trial courts to divert eligible veterans or active-duty persons charged with qualifying offenses from the normal criminal process into treatment. Wade v. Superior Court (2019) 33 Cal.App.5th 694, 707; Penal Code § 1001.80.
Not included in diversion are supervised probation, the court team approach or intensive judicial supervision. Nor does the court utilize evidence-based practices. Rather, the defendant usually requests diversion and suggests a preferred treatment program that is provided outside the court. Unless the defendant is performing unsatisfactorily in the program, the court stays uninvolved with a diverted veteran defendant during treatment.
Notably, while courts regularly require a program for veterans to provide veteran-specific treatment, there is usually no representative of the VA involved with diverted veterans' treatment. The statute provides that the court 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 VA. Penal Code § 1001.80 (g) & (h).
Pretrial diversion means the postponement of prosecution, either temporarily or permanently. A veteran defendant who has been accused of a crime may be eligible to be diverted away from prosecution after the accusatory pleading has been filed. Upon successful completion, the arrest upon which the diversion was based is deemed to have never occurred. Penal Code §§ 1001.80 (a)(k).
Does the court have the same authority over a diverted
defendant as it does over a defendant in a collaborative court?
Collaborative courts operate in a similar manner to traditional courts in that the judge controls the entire process. In them, the judge and the team collaborate to decide such matters as the defendant's treatment, probation conditions and sanctions. Thus, the court has the final say and maintains full control and authority over the defendant. But it's not at all clear what authority a court has over a defendant who has been ordered into diversion.
Appellate courts have differentiated drug diversion
In all three of the cases discussed here, the defendants were on diversion under Penal Code § 1000. That drug diversion statute is different from military diversion under Penal Code § 1001.80 in that under § 1000, the accused is required to enter a guilty plea and judgment is deferred. But the two statutes are similar in that the normal prosecution process is bypassed while a defendant is given treatment.
The defendant in People v. Orihuela (2004) 122 Cal.App.4th 70, was on Penal Code § 1000 diversion when he missed a scheduled court appearance and was thereafter convicted of felony failure to appear. In reversing the failure to appear conviction, the Court of Appeal noted that a person on diversion has not been released on his own recognizance and thus cannot be guilty of a failure to appear.
In People v. Ormiston (2003) 105 Cal.App.4th 676, the defendant was also on Penal Code § 1000 drug diversion when he committed new crimes. The trial court found true two enhancement allegations for the offenses committed while the defendant was released on bail or on own recognizance. The Court of Appeal reversed the findings on the enhancements, noting that the enhancement statute, Penal Code § 12022.1, is satisfied when a defendant's status is bail or release on defendant's own recognizance, but drug diversion is not the functional equivalent of either.
In Terry v. Superior Court (1999) 73 Cal.App.4th 661, during the defendant's diversion under Penal Code § 1000, the court required the defendant to submit to unannounced chemical tests at the request of a peace or probation officer, and to submit to searches and seizures of his person, property and vehicle. The Court of Appeal noted that the various attributes of Penal Code § 1000 are creatures of statute and that nowhere in § 1000 does it allow the imposition of a search condition. The court added that nowhere in the statute are provisions authorizing a trial court to impose additional conditions upon a defendant eligible for diversion. However, the court found no merit to the defendant's objection to drug testing because the drug diversion statute specifically authorizes the court to conduct drug testing.
Alcohol and drug testing
In VTCs, the collaborative team led by the judge makes the testing decisions. And both the VA representative and the probation officer have the authority and resources to order drug and alcohol testing.
Matters are not so clear in the diversion setting. Unlike Penal Code § 1000, wherein the drug diversion statute specifically authorizes testing by the court, Penal Code § 1001.80 is silent with regard to testing.
It would not be surprising should a court want to order drug or alcohol testing for a veteran defendant in diversion. Under Penal Code § 1001.80 (e), the court may hold a hearing if it appears a diverted veteran defendant may be performing unsatisfactorily in an assigned treatment program. Ordering testing seems like the logical thing to do when deciding whether to end diversion and resume criminal proceedings.
Absent specific statutory authority to do so, it is unclear what authority a court has over a diverted veteran defendant, including whether or not a court may order drug or alcohol testing of a veteran defendant diverted under Penal Code § 1001.80. There is an argument that the court must rely on testing performed by the treatment program administrator, which testing is done if and when the program administrator decides it should be done.
There is also an argument the court has the authority to order drug and alcohol testing of a diverted veteran defendant under Health and Safety Code § 11972, which statute mandates that "treatment court programs" shall conform with certain standards, including: "Frequent alcohol and other drug testing to monitor abstinence." But the statute does not define what a treatment court program is.
There is no California Rule of Court defining treatment court either. The Judicial Council's website does have a document called FACT SHEET, which was updated in March 2025. It contains such statements as "treatment courts provide supervision and treatment based on individual needs of each participant." Okay. But that description could, but not necessarily, apply to both a collaborative court and a diversion program. In collaborative courts, the court and the team supervise the defendant; in diversion programs, the program administrator supervises the defendant. In both, the defendant receives treatment based on needs.
For the last 30 years, All Rise, formerly known as the National Association of Drug Court Professionals, has been the premier advocacy organization for improving justice system responses to substance use and mental health disorders at every intercept point. In fact, Health and Safety Code § 11972 mandates that "treatment court programs" shall be designed and operated in accordance with guidelines incorporating standards developed by All Rise. Yet, All Rise's website does not define treatment court. It states: "Treatment courts are considered the most successful justice intervention for people with substance use and mental health disorders."
The website for the Department of Justice states: "Treatment courts are specialized court docket programs that allow individuals to enter long-term drug treatment and agree to court supervision rather than receive a jail sentence. Treatment court participants who complete the program can have their underlying criminal offenses dismissed or expunged. However, if a participant fails to complete the program, their case is processed through the traditional justice system." That description might also apply to both collaborative courts and diversion.
Without a definition of treatment court somewhere or specific authority under the military diversion statute, California courts are left without clarity whether or not the standards and mandates set forth in Health and Safety Code § 11972, apply to diversion programs for veteran defendants.
Conclusion
California has come a long way since Vietnam. During that era, the postwar inflictions and needs of veterans were totally ignored. Today, the California Legislature has statutes in place that permit veterans to enter collaborative courts post-plea or diversion pre-plea.
The Judicial Council and California courts have stepped up to the plate with regard to alternatives to incarceration for many persons accused of committing crimes. We now have 359 collaborative courts up and down the state, 47 of which are VTCs. And most courts offer some types of diversion programs.
However, with regard to the authority courts have over veterans in diversion, a little more clarity is needed. It would also help to have a clear definition of what a treatment court is.