For misdemeanor pretrial military diversion, the defendant must show a “reasonable possibility” that he or she is suffering from a qualifying condition as a result of their military service. (PC 1001.80 (b).) Consistent with the statute’s language and legislative history, by requiring the defendant to show they “may be” suffering from a qualifying condition, the Legislature intended to impose a lower “reasonable possibility” burden of proof – lower than a preponderance of the evidence – thereby making it less burdensome to establish eligibility.

PC 1001.80 does not permit the trial court to rely on counsel’s statements to satisfy the burden of proof of eligibility in misdemeanor cases. Unless otherwise stated, a burden of proof must be satisfied by “evidence.” Subdivision (b)(2) does not permit otherwise, and statements of counsel are not evidence. The trial court’s reliance on defense counsel’s representations to grant diversion was an error of law, and the case was remanded for an evidentiary hearing where the defendant could make a proper showing, which, the Court noted, could include a stipulation by the parties of defendant’s eligibility.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/C102760.PDF