A few years ago California allowed Judges to grant Diversion over the objections of the prosecution on most misdemeanor offenses, this was commonly referred to as Judicial Diversion. Unfortunately the statute that allowed for this expired. In 2021 the law has brought back Judicial Diversion. AB 3234 is a broader version of the older pilot program which ran in Los Angeles County. The new program will allow for a request for diversion in virtually all misdemeanor cases with the exception of specific enumerated crimes such as domestic violence and 290 registered offenses. Previously excluded offenses such as DUI appear to be eligible under the 2021 statute.
Although driving under the influence charges such as VC23152 are not specifically excluded in the new CA diversion statute, VC23640 states that DWI cannot be dismissed if the person participates in an education program. Many Judges in Los Angeles are using VC23640 as a reason to deny defense requests for diversion of DUI charges. Ultimately an Appellate Court will need to decide this issue. A similar argument was used to deny diversion for drunk driving in Military cases. This issue was decided in favor of the servicemen and women. It will be interesting to see if the Courts go the same way given that it would now apply to anyone in the state. Stay tuned!
The following is a synopsis of the law pertaining to this form of Diversion:
Penal Code 1000.95
(a) A … judge may, at the judge’s discretion, and over [The Prosecution’s] objection…, offer diversion to a [misdemeanor] [Defendant]….
(b) [Diversion can last up to] 24 months and [can include] terms, conditions, or programs … based on [D’s] specific situation.
(c) If [Defendant] has complied…, at the end …, the judge shall dismiss the [case].
(d) If … [D] is not complying …, the court may [hold a hearing,] end the diversion and [resume] the criminal proceedings.
(e) [Not eligible:] (1) Any [PC 290] offense…., (2) … [PC] 273.5, (3)…[PC 243, subd. (e)], (4)…[PC] 646.9.
Penal Code 1000.96
A [diverted Defendant] … [must] complete all of the following … to have their action dismissed:
(a) Complete all conditions ordered by the court.
(b) Make full restitution. However, a [Defendant’s] inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that [D] has failed to comply with the terms of diversion.
(c) Comply with a court-ordered protective order, stay-away order, or or- der prohibiting firearm possession, if applicable.
Penal Code 1000.97
(a) Upon successful completion of [diversion] …, the arrest … shall be deemed to have never occurred. [D] may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of [diversion] shall not, without [D’s] consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(b) [Defendant] shall be advised that, regardless of their successful completion of diversion, the arrest … may be disclosed by the Department of Justice in response to a peace officer application request and that … this section does not relieve them of the obligation to disclose the arrest in response to a direct question … in a questionnaire or application for a position as a peace officer, as defined in Section 830.
As Criminal Defense Attorneys we applaud the legislature for bringing back Judicial Diversion because it allows for cases to be resolved when dealing with an unreasonable prosecutor. This law will allow many Defendants to maintain a clean record even though they had a misstep in their life.
Diversion can be a fantastic way to resolve a tough case for a non citizen because it may not involve a plea of guilty or no contest and results in the dismissal of the case once all conditions have been satisfied.
Judicial Diversion will not be available for all crimes as the statute specifically excludes Domestic Violence and Sex Crimes for example. However, the vast majority of misdemeanor offenses will be eligible for dismissal under this new law. This new statute will be welcomed in Los Angeles cases in particular where the City Attorney has taken a hard stance on many crimes leaving Defense Counsel with few alternatives other than taking the case to trial.
Many Judges, as well as the California Judicial Commission, have raised concerns about the burden this new law will place on already taxed Courts. Hearings will need to be held to determine whether individual cases warrant a grant of diversion which will take time and resources.
However, as a criminal defense practitioner for over 25 years my perspective is that the law will decrease Court congestion by eliminating the need for frivolous trials in misdemeanor cases where an obstreperous prosecutor refuses to make a reasonable offer or cases where policies from higher up leave the Courtroom prosecutor’s hands tied. A prime example are cases involving concealed weapons at LAX. In these cases the City Attorney stopped giving diversion a couple years back and it has clogged the Court with trials on cases involving first offenders and otherwise diversion worthy clients. Now a reasonable Judge can step in and resolve the case thereby freeing up the Courtroom for more serious cases.