Wednesday, December 3, 2025
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Court of Appeal:
Error to Grant Diversion Based on Counsel’s Representations
Opinion Criticizes Legislature for Failing to Provide ‘Clarity’ as to What Types of Evidence Will Suffice to Prove Qualifying Event for Military Members Seeking Relief, Says Factual Assertions by Lawyer Are Insufficient
By a MetNews Staff Writer
A trial judge erred in granting pretrial diversion to a man accused of drunk driving—under a law providing courts with discretion to postpone prosecution, either temporarily or permanently, to allow a defendant to seek treatment if the accused “may be” suffering from substance abuse resulting from military service—based only on defense counsel’s representations about his client’s purported drinking problem, the Third District Court of Appeal held yesterday.
At issue is whether a lawyer’s statement is sufficient to establish his client’s eligibility under Penal Code §1001.80(b) which provides that a defendant who is charged with a misdemeanor offense is eligible for diversion if “[t]he defendant was, or currently is, a member of the United States military” and “may be suffering from…substance abuse…problems as a result of [his] military service.”
Acknowledging that “the burden of proof is relatively low,” the court said that while “[i]t is unfortunate that the Legislature did not provide any clarity as to the information upon which a court may rely in determining misdemeanor military diversion,” the defendant must provide some evidence of eligibility beyond his lawyer’s remarks.
The question arose after Malcolm Holliday was charged with driving under the influence of alcohol in July 2023, relating to an incident in which he was allegedly seen driving on the shoulder of a road and blowing through a stop sign a month earlier. His blood alcohol level was purportedly found to be 0.33%, well above the legal limit.
Request for Diversion
In November 2023, Holliday filed a motion under §1001.80(b) seeking pretrial diversion. He did not file any exhibits or testimony in support of the request; however, his lawyer stated in the filing that Holliday was an active-duty member of the U.S. Air Force who began “using alcohol as a way to reduce the effects of stress” relating to his deployment to Qatar in 2021 and to the United Arab Emirates in 2022.
At a hearing on the motion, held the following month, Holliday submitted his military identification and answered questions posed to him by the court regarding the proposed program’s terms and conditions. No other documents or sworn statements were provided to the court.
Yolo Superior Court Judge Samuel T. McAdam granted Holliday’s request for diversion, ordered the defendant to complete an alcohol treatment program, and set the case for a progress check in June 2024.
On the next court date, Holliday submitted proof that he had been referred to a program operated by the Air Force but that he was disqualified from participation after it was determined that he “did not meet criteria for a substance use disorder.” McAdam set final terms for the defendant’s diversion and ordered him to participate in an alternative alcohol treatment plan.
Appellate Division Decision
The prosecutors then filed an appeal with the Appellate Division of the Superior Court, arguing that the diversion order was not supported by sufficient evidence. The division, in a published opinion, said that a trial court may “rely on offers of proof, reliable hearsay, and argument of counsel when determining a defendant’s eligibility.”
On Jan. 31, the Third District, on its own motion, ordered that the case be transferred to it under California Rule of Court 8.1002. Acting Presiding Justice Harry E. Hull Jr. authored yesterday’s opinion, joined in by Justice Peter A. Krause and retired Fifth District Justice Rebecca A. Wiseman, sitting by assignment, remanding the case with directions “to reverse the order granting diversion and to conduct a new hearing.”
Hull noted:
“[T]he appellate division…affirmed the trial court’s decision by finding the trial court properly considered statements made by counsel. To justify this conclusion, the trial court looked to section 1001.36, subdivision (e), which governs proceedings on a request for mental health diversion.” Sec. 1001.36 provides that “the court may require the defendant to make a prima facie showing that [he] will meet the minimum requirements of eligibility for diversion” and “[t]he hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel.”
Statutory Language
Saying that “[t]he language the appellate division relied on is not contained in section 1001.80,” Hull opined:
“[H]ad the Legislature wanted to allow defendants to rely on statements of counsel or ‘offers of proof, reliable hearsay, and[/or] argument of counsel’ to meet the defendant’s burden of proof to demonstrate the defendant’s section 1001.80, subdivision (b), eligibility, it could have said so. But the Legislature did not so provide.”
He similarly rejected the defendant’s attempt to categorize subdivision (c)(2)(C) of §1001.80, which applies to military diversion in felony cases and specifies that “[a] court may consider any relevant and credible evidence” in determining eligibility, as allowing the reliance on his attorney’s representations.
Noting that “[s]tatements of counsel are not evidence,” he remarked:
“[F]actual assertions by counsel are not sufficient to satisfy the evidentiary requirements necessary to support an order for diversion under section 1001.80….[O]n this record, it appears defendant presented insufficient evidentiary support regarding the cause of his purported substance abuse….”
The justice added:
“Perhaps the Legislature could provide the clarity missing from section 1001.80, subdivision (b) by incorporating therein the language set forth in section 1001.80 subdivision (c)(2)(C).”
The case is People v. Holliday, 2026 S.O.S. 3486.
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