No minimum service requirement under Penal Code section 1001.80i is required for military diversion

Angulo v. Superior Court of Riverside County (Cal. Ct. App., Sept. 16, 2025, No. E085719) 2025 WL 2650050, at *1

Summary: Angulo was charged by the Riverside County District Attorney’s office (the People) with misdemeanor driving under the influence per Vehicle Code sections 23152, subdivisions (a) and (b). Angulo entered a not-guilty plea and requested military diversion per Penal Code section 1001.80. Argulo had been an active member of the United States Marine Corps for five months and he had served five years in the Marine Corps Reserve. The trial court denied defendant’s request finding that he had not served the threshold of active duty for one year or one day of combat to qualify for military diversion. The trial court relied on the Legislature’s intent in enacting Penal Code section 1001.80 and the “Memorandum of Understanding” from the Riverside County Veteran Treatment Center ( MOU), to deny Angulo’s request for pretrial diversion.

Angulo filed a writ of mandate in the appellate department of the superior court. The People conceded that Penal Code section 1001.80 did not have a one-year requirement of military service to be eligible for diversion. The superior court issued a decision finding that Penal Code section 1001.80 does not contain any time limit for military service and remanded to the trial court for it to reconsider the denial of diversion. The superior court opinion also held that defendant was not entitled to pretrial diversion as a matter of law, but rather, if the trial court found defendant was eligible, the trial court had the discretion to consider whether he was suitable for diversion.

After the appellate department of the superior court filed its opinion, on our own motion, the Court of Appeal ordered the case transferred pursuant to California Rules of Court rule 8.1002(3). The Court of Appeal ordered Angulo and the People to file briefs addressing: (1) Whether the superior court opinion properly used the term “suitability” in relation to Penal Code section 1001.80; and (2) whether the MOU referenced in the opinion relates to eligibility for military diversion under Penal Code section 1001.80, or whether it relates only to military treatment under Penal Code section 1170.9.

Angulo contends that (1) the appellate division of the Riverside County Superior Court (Appellate Division) properly used the term “suitability” based on the findings in Wade v. Superior Court (2019) 33 Cal.App.5th 694, 245 Cal.Rptr.3d 435 (Wade) and the appellate court should clarify that “suitability” should only “turn on … whether the defendant is willing to engage in that treatment, consistent with the statute’s rehabilitative purpose”; (2) the MOU applies to both Penal Code sections 1001.80 and 1170.9 but cannot be used to impose additional disqualifying criteria beyond the plain text and intent of those statutes; and (3) the trial court’s reliance on the MOU to deny relief on grounds not found in the statute was improper under Wade and must be rejected. The People agree that the Appellate Division of the superior court properly used the term suitability despite it not being a term in Penal Code section 1001.80 and the court can consider any suitability factor as long as it is consistent with the principles and purpose of the governing law. The People disagree with defendant’s narrow view of suitability that it only consider the individual’s capacity to engage in, comply with and benefit from treatment. The People also agree with Angulo that the MOU applies to both Penal Code sections 1001.80 and 1170.9, but that the one-year service requirement does not override the statutory authority.

Factual And Procedural History

Angulo was charged with misdemeanor driving under the influence pursuant to Vehicle Code section 23152, subdivisions (a) and (b), which he committed on August 12, 2023.  He entered a not-guilty plea and requested to be placed on military diversion pursuant to Penal Code section 1001.80. He provided proof that he served five months of active service in the United States Marine Corps and represented he had served several years in the reserves.

“The state’s diversion programs ‘generally authorize trial courts to divert eligible persons charged with qualifying offenses from the normal criminal process into treatment and rehabilitation.’ ” (People v. K.D. (2025) 110 Cal.App.5th 1, 15, 331 Cal.Rptr.3d 277.) “Military diversion represents a relatively new addition to the state’s diversion programs.” (Wade, supra, 33 Cal.App.5th at p. 707, 245 Cal.Rptr.3d.) “The primary purpose of diversion is rehabilitation.” (Wade, supra, at p. 707, 245 Cal.Rptr.3d 435.)

When this case was decided in September 2024, Penal Code section 1001.80 only applied to misdemeanor offenses. Since then, Penal Code section 1001.80 has been expanded to provide that some felony offenses are eligible for diversion. Current Penal Code section 1001.80, subdivision (b), provides that “A defendant charged with a misdemeanor is eligible for diversion if both the following apply: (1) The defendant was, or currently is, a member of the United States military.  (2)(A) 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 their military service.” A defendant need only show a “reasonable possibility” that he is suffering from a qualifying condition. Penal Code section 1001.80, subdivision (b) provides, “The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.”

Current Penal Code section 1001.80, subdivision (c) sets forth the criteria for determining whether a defendant who commits a felony offense is eligible for diversion. “To be eligible for military diversion when charged with a felony, the defendant has the burden to show a relationship (a nexus) between the qualifying condition (e.g., substance abuse) and the commission of the charged offense (the crime). However, when charged with a misdemeanor, the defendant has no burden to show such a relationship or nexus.” (Segura, supra, ––– Cal.App.5th at ––––, ––– Cal.Rptr.3d ––––, 2025 WL 2505320, at *1.) r offenses only.

Subdivision (b) of Penal Code section 1001.80 provides, “If the court determines that a defendant charged with an applicable offense under this chapter is a person described in subdivision (b) or (c), 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).”

The trial court should consider both whether a defendant is eligible for military diversion, and then evaluate the defendant’s suitability for diversion taking into account the rehabilitative purpose of Penal Code section 1001.80. The trial court can consider any factor in determining suitability, as long as it does not conflict with the statutory language, such as excluding DUI offenses, and considers the factors in light of the purposes of the diversion statute for treatment and rehabilitation, and whether defendant would benefit from diversion.

MOU APPLICABLE TO PENAL CODE SECTIONS 1001.80 AND 1170.9

The parties agree that the MOU applies to diversion under both Penal Code sections 1001.80 and 1170.9, and that the MOU is only intended to be a reference, not a road block for judicial officers.

Penal Code section 1170.9 provides, “(a) In the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that the person committed the offense as a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether 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 the person’s service. The court may request, through existing resources, an assessment to aid in that determination.” This section applies to those who have been convicted and want to be considered for “Veterans Court” as opposed to military diversion pursuant to Penal Code section 1001.80, which involves misdemeanor or qualifying felony offenses before the court on an accusatory pleading.

The MOU in this case is between the Riverside courts, district attorney’s offices, public defender’s offices, and other community partners.

The trial court erred by finding there was a minimum service requirement under Penal Code section 1001.80 and the MOU. Further, Penal Code section 1001.80 requires the trial court to consider whether defendant is eligible for diversion, and then make a suitability determination.

DISPOSITION

A writ of mandate issued directing the superior court to vacate its order denying Petitioner’s request for military diversion under Penal Code section 1001.80 and conduct further proceedings in a manner consistent with this opinion.

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