Diversion is often one of the best outcomes in criminal law. It means no conviction, no probation, and eventually the case is dismissed. However, what many people refer to as “diversion” is not one thing. It is a family of very different programs, with one category being “formal” diversion that is codified in California statute, while the other is often referred to as “informal” diversion. This article explains the main types of diversion in California, what each one requires and does.
Diversion In California: The Short Answer
Formal diversion pauses a criminal case while the defendant completes requirements such as treatment, classes, or community service, and dismisses the case on successful completion. California has several kinds of formal diversion. Misdemeanor or Judicial diversion under Penal Code 1001.95, Mental health diversion under Penal Code section 1001.36, and military diversion under section 1001.80.
What some people call “informal” or prosecutorial diversion is arranged directly with the district attorney, and comes in two forms that matter: a pre-plea version, where no plea is entered, and a post-plea version, where the defendant pleads first and the plea is withdrawn later.
The single most important distinction for a non-citizen is whether a plea is entered. A pre- plea or no-plea diversion generally is not a conviction for immigration purposes and is immigration-safe on that axis. A post-plea diversion involves a finding of guilt that federal immigration law treats as a conviction even after the case is dismissed, which can be devastating. Mental health diversion may carry a separate, subtler immigration trap of its own, explained below.
The Types Of Diversion: Formal & Informal Diversion
Here are the main programs, and what each requires and delivers.
Misdemeanor diversion, Penal Code Section 1001.95 This gives a judge discretion to grant diversion on many misdemeanors, even over the prosecutor’s objection, with the case dismissed on completion of court-ordered conditions. However, it has significant exclusions. It does not apply to domestic violence, to DUI, to stalking, or to certain sex offenses. Those carve-outs are why misdemeanor diversion is unavailable in exactly the cases, like domestic violence, where people most often ask about it, which is where the informal possibilities below become important
Mental Health Diversion, Penal Code Section 1001.36 This is a pretrial program for defendants with a qualifying mental disorder, drawn from the DSM-5, such as bipolar disorder, schizophrenia, or PTSD, but excluding a few conditions like antisocial personality disorder and pedophilia. To qualify, the defendant must show, through a qualified mental health expert, that the disorder was a significant factor in the offense and would respond to treatment, among other findings
the court must make. Importantly, no plea is required; the case is paused, treatment is undertaken for a period, and on successful completion the case is dismissed and the arrest sealed. Certain serious offenses are excluded, including murder, voluntary manslaughter, rape, and offenses requiring sex-offender registration, and DUI is barred from this diversion by Vehicle Code section 23640.
Military Diversion, Penal Code Section 1001.80 This program is for current and former members of the United States military who may be suffering from a service-related condition such as post-traumatic stress disorder, traumatic brain injury, military sexual trauma, or substance abuse. It applies to misdemeanors and felonies, and on successful completion the case is dismissed. It has no domestic violence or DUI exclusion as Penal Code section 1001.95 has. It is a recognition that service-related conditions can drive conduct that treatment, not punishment, should address.
Drug Diversion, Penal Code Sections 1000-1000.5 This is a separate pretrial diversion program for certain specified, generally lower- level personal-use drug offenses. It is not available in every drug case: eligibility depends on the charged offense, the person’s recent record, and whether the case involved violence or threatened violence. If eligible, the defendant pleads not guilty, waives speedy trial rights, and completes an approved treatment or education program. Participation in this program does not constitute a conviction or admission of guilt which makes it a generally favorable for a non-US citizen.
“Informal Diversion”, Pre-Plea Separate from the statutes which outline formal ways to obtain dismissal through diversion, a prosecutor can agree to divert a case by agreement. After the case is filed in court, but before a guilty or no-contest plea is entered, i.e. no admission of guilt, the defendant agrees to complete certain conditions – a class, community service, a period of good conduct – and on completion of those terms, the prosecutor dismisses the case, with no plea and no finding of guilt ever entered. “Informal diversion” is also referred to by some attorneys as an “earned dismissal” which we describe in our article on getting a domestic violence case dismissed, and it is often the optimal outcome for a criminal case that is filed.
“Informal Diversion”, Post-Plea Another kind of “informal diversion” can also lead to a dismissal. However, this form requires a no-contest or guilty plea but instead of being sentenced, the defendant’s case is continued for a period of time, perhaps six months or a year. During that time, if the defendant completes certain agreed upon terms – a class, community service, and commits no new law offenses in the interim – the defendant is allowed to withdraw his plea and the case is dismissed. While this looks similar to the pre-plea informal diversion discussed above, in certain circumstances – including for immigration purposes – it may act as a “conviction” as there is a finding of guilt. A post-plea disposition is not automatically a “conviction” for immigration purposes but can be if there is a Judge imposed punishment, penalty, or restraint on liberty.
Thus depending on the exact terms of this type of informal diversion for a United States citizen this can be a fine outcome but for a non-citizen it can be a disaster.
The Diversion Table
The grid compares the programs on the features that matter, especially the plea and the immigration posture.
| Program | Statute | Plea Required? | Applies To | On Completion | Immigration Posture (Plea Axis) |
|---|---|---|---|---|---|
| Mental Health Diversion | PC 1001.36 | No | Misdemeanors and felonies with a qualifying disorder; serious-offense exclusions | Dismissed; arrest sealed | Conviction- safe, but see the potential evidentiary trap below |
| Military Diversion | PC 1001.80 | No | Misdemeanors; service-related conditions | Dismissed | Generally conviction- safe |
| Misdemeanor Diversion | PC 1001.95 | No | Many misdemeanors; excludes DV, DUI, stalking, some sex offenses | Dismissed | Generally conviction- safe |
| Informal DA Diversion, Pre-Plea | Informal, no statute, agreement between DA and Defense | No | By agreement | Dismissed | Immigration- safe on the plea axis |
| Informal DA Diversion, Post-Plea | Informal, no statute, agreement between DA and Defense | Yes | By agreement | Plea withdrawn, case dismissed | Potentially dangerous: the plea is a conviction for immigration |
| Drug Diversion | PC 1000- 1000.5 | No | Specified, generally lower-level personal use drug offenses; eligibility is statute-specific | Dismissed | Generally conviction- safe |
A Potential Immigration Trap: The Plea That Counts As A Conviction
This is the trap that catches non-citizens who think a dismissal protects them. It does not, if a plea came first.
Federal immigration law has its own definition of “conviction.” Under Immigration and Nationality Act section 101(a)(48)(A), a conviction includes a case where the person entered a plea of guilty or no contest and the court imposed some form of penalty or restraint, even if the case is later dismissed under a state diversion or deferred-judgment program. In other words, immigration law counts the plea and the conditions as a conviction, and it typically will not care that California later dismissed the case.
The consequence is stark. A post-plea diversion, where the defendant pleads first and withdraws the plea after completing conditions, produces a “conviction” for immigration purposes the moment the plea is entered, and the later dismissal does not erase it. So a program that looks like a clean, no-conviction outcome to a citizen can trigger deportation for a non-citizen. This is why the pre-plea versus post-plea distinction is not a technicality. The safer path for a non-citizen is a form of diversion that requires no guilty or no-contest plea (i.e. no admission of guilt) at all, whether a no-plea statutory program or a pre-plea informal agreement.
A Potential Immigration Trap In Mental Health Diversion
Another subtler danger for immigrants is specific to mental health diversion.
To obtain mental health diversion under section 1001.36, the defense must affirmatively prove that the defendant has a qualifying mental disorder and that the disorder was a significant factor in causing or contributing to the criminal conduct. That is the price of getting into mental health diversion: a documented showing, supported by expert opinion, that the person has a serious mental illness connected to dangerous or criminal behavior.
Now consider what that record is, from an immigration standpoint. Federal immigration law contains a health-related ground of inadmissibility for a physical or mental disorder with associated harmful behavior (INA § 212(a)(1)(A)(iii); USCIS Policy Manual, Vol. 8, Pt. B, Ch. 7). The very submission and argument related to this mental health issue that wins acceptance into mental health diversion – a formal, expert-supported proof that the defendant has a mental disorder that caused harmful conduct – is close to a ready-made piece of evidence for that inadmissibility ground. In theory and, as we have seen, in practice, that court record can be obtained and used by immigration authorities to argue that the non-citizen is inadmissible on health-related grounds.
For a noncitizen who may later seek admission or adjustment, a formal diversion filing can create potentially relevant evidence in a separate federal health related inadmissibility. It does not itself establish inadmissibility, but the risk can be serious enough to require coordinated criminal and immigration strategy before filing.
So mental health diversion presents a potential paradox for a non-citizen. It is conviction- safe, because it requires no plea and upon successful completion, results in a dismissal. However, qualifying for it requires manufacturing evidence of another ground of admissibility that may cause the non-citizen problems. The humane remedy and the immigration danger come from the same document. This is why a non-citizen considering mental health diversion needs coordinated criminal and immigration analysis before filing anything, and why, in some cases, the better course is to obtain the substance of the relief without creating the formal record, as the case below shows.
A Past Case From Vijay Law
Our client was charged with a serious offense, and he clearly qualified for mental health diversion. His mental illness had plainly contributed to the conduct, and on the criminal side, a section 1001.36 petition was the obvious move. However, he was a non-citizen, from China, and that changed everything.
The problem was the one described above. To win mental health diversion, we would have had to file a written request proving he was mentally ill and that his illness had led to a dangerous condition. We additionally may have had to make an argument, on the record, that he was severely mentally ill and the Judge may have solidified that claim with further factual findings of his mental illness. That record would have become a piece of evidence, in the Federal government’s hands, that he had a mental disorder associated with harmful behavior, exactly the kind of evidence that can support a health-related ground of inadmissibility. Winning the diversion could have cost him his ability to remain in the country. So we did not file it.
Instead, we built the same outcome by a different route. I had our client get into treatment. We continued the case several times to let that treatment take hold and show progress. Then, rather than filing a public diversion petition, we presented the district attorney, privately, with a mitigation package: letters from his psychiatrist and his physician documenting his mental health condition and his treatment, a letter from the alleged victim, who wanted the case dismissed, and a letter from an immigration attorney explaining precisely why enrolling in formal mental health diversion could expose our client to immigration danger. On the strength of that package, and after our client completed community service, the district attorney reluctantly dismissed the case.
He got the substance of what mental health diversion offers, a dismissal after treatment and good conduct, without ever creating the formal record that would have followed him into an immigration proceeding. That is the kind of outcome that only comes from handling the criminal case and the immigration exposure as a single problem.
How To Approach Diversion
The lesson of all of this is that diversion is not a single door, and for a non-citizen the wrong door can be worse than no diversion at all. A few principles follow.
Identify the goal and the immigration status first. For a citizen, most diversions are simply good outcomes to be pursued. For a non-citizen, the analysis has to run through immigration consequences before anything is filed.
Prefer no-guilty plea diversion. A program that requires no admission of guilt, or a pre-plea informal agreement, avoids the conviction trap. A post-plea diversion should be approached with great caution by any non-citizen. Finally, treat mental health diversion with special care. It is conviction-safe but can create health-inadmissibility evidence, so a non-citizen should weigh whether to seek the formal program or, as in our case, pursue the same substance through an informal, private route that does not manufacture the record.
Coordinate criminal and immigration counsel. The recurring theme of our practice is that for a non-citizen these are one problem, not two, and the best outcomes come from treating them together. We have an entire section devoted to immigration consequences of criminal convictions
Frequently Asked Questions About Diversion In California
What Is Diversion In A California Criminal Case?
Formal diversion pauses a criminal case while the defendant completes requirements like treatment, classes, or community service, and then dismisses the case. Done through a no- plea program, it results in no conviction and, eventually, a sealed record.
What Kinds Of Diversion Are There?
The main statutory “formal” diversion programs are mental health diversion (Penal Code 1001.36), military diversion (1001.80), and misdemeanor diversion (1001.95). There is also something commonly called “informal diversion” arranged with the prosecutor, in pre-plea and post-plea forms that differ crucially for immigration.
Is Diversion Safe For My Immigration Status?
It depends on the type of diversion. A no-plea or pre-plea diversion is generally safe from the conviction standpoint. A post-plea diversion, where you plead first, is treated as a conviction under federal immigration law even after dismissal, and can be dangerous depending on what you are convicted of. Mental health diversion carries a separate risk explained below.
Can Mental Health Diversion Hurt My Immigration Case?
It can, in a subtle way. Qualifying requires proving you have a mental disorder that contributed to the offense, and that proof can become evidence for a health-related ground of inadmissibility. It is conviction-safe but can create other immigration exposure, so a non- citizen should get immigration advice before filing.
Can I Get Diversion For A Domestic Violence Case?
Not through misdemeanor diversion under 1001.95, which excludes domestic violence. Other paths, including an informal “earned dismissal”, may be available, as we explain in our article on getting a domestic violence case dismissed.
Why Does It Matter Whether I Plead Guilty Or No-Contest First?
Because federal immigration law treats a guilty or no-contest plea plus a penalty as a conviction, even if the case is later dismissed. A diversion that requires no plea avoids this; a post-plea diversion does not. For a non-citizen, that difference can decide whether they can stay in the country.
This article provides general information and is not legal advice, and it is not immigration advice. Diversion eligibility and immigration consequences are individualized and this area is complex and evolving. Consult an attorney for further information.