NAPA VALLEY, CA — A Napa County judge has granted mental health diversion to a former Napa County sheriff's deputy accused of secretly recording his wife in the shower and sharing her nude images online without her permission, halting the criminal case despite strenuous objections from prosecutors.
Visiting Napa Superior Court Judge Julie M. Conger on Thursday granted former Napa County Sheriff's Deputy James Robert Fotherby, 44, of Napa, one year of mental health diversion, the maximum allowed for a misdemeanor offense, according to the Napa County District Attorney's Office.
Fotherby is charged with unauthorized invasion of privacy and unlawful distribution of intimate images, both misdemeanors.
Prosecutors also alleged a sentencing enhancement that would require a minimum three-year probation term if he is convicted because of his relationship with the victim.
According to prosecutors, the alleged conduct occurred between 2023 and 2025. They allege Fotherby secretly recorded the victim while she showered and distributed explicit nude images of her to other men on the internet without her knowledge or consent.
The charges were filed earlier this year after investigators alleged Fotherby repeatedly recorded and shared intimate images of his estranged wife. At the time, prosecutors said he had worked as a courtroom bailiff with the Napa County Sheriff's Office before his arrest. He pleaded not guilty to the charges.
Soon after charges were filed, Fotherby's attorney sought mental health diversion, citing diagnoses of post-traumatic stress disorder, obsessive-compulsive disorder, and sex addiction.
The district attorney's office argued that sex addiction — which is not a qualifying diagnosis under California's diversion law — drove Fotherby's alleged conduct rather than PTSD.
Deputy District Attorney Shashawnya Worley also presented a competing mental health evaluation, obtained through family court filings, concluding that Fotherby did not meet the criteria for PTSD.
Worley argued that Fotherby was attempting to rely on conflicting mental health evaluations in separate legal proceedings.
California's mental health diversion law allows eligible defendants with qualifying mental health disorders to receive treatment instead of continuing through the traditional criminal process.
Prosecutors noted that amendments to the law in 2023 created a presumption that a qualifying mental disorder significantly contributed to an alleged offense unless the prosecution presents clear evidence otherwise.
After hearing arguments from both sides and statements from the victim describing the effect the alleged conduct had on her and her children, Judge Conger ruled that Fotherby fit the type of defendant the Legislature intended to serve through the diversion program.
The judge declined prosecutors' request to place Fotherby on supervised release. Instead, the court ordered him to continue mental health treatment, prohibited him from viewing or possessing pornography, and ordered him to pay restitution, including costs to locate and remove any remaining intimate images from the internet.
The diversion order pauses the criminal case for one year. If Fotherby successfully completes the program and complies with the court's conditions, the charges will be dismissed.
Following the hearing, Worley criticized the breadth of California's current diversion law.
"While I believe the idea behind mental health diversion at its inception was well intentioned, the unfortunate reality is, as currently written, it seems to reach cases far beyond its intended scope," Worley said in a statement released by the district attorney's office.
"I acknowledge and commend law enforcement for the extremely difficult job they do, but in this particular case I fail to see a connection between general occupational stress and violating someone by posting their intimate images to the public."
Fotherby is scheduled to return to Napa County Superior Court at 9:30 a.m. Nov. 3 for a mental health diversion review in Department 3.
More: Napa Sheriff's Deputy Secretly Recorded, Shared Nude Images Of Wife, Prosecutors Charge: Report
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