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 defense motion for diversion in virtually all misdemeanor cases with the exception of specific enumerated crimes such as domestic violence and 290 registered offenses. The intent of Legislature with PC 1001.95 is to promote a global increase in diverted cases in order to be proactive and mitigate both an individual’s entry and reentry into the criminal justice system, as well as to reduce taxpayer costs.  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. District Attorneys across the state have spoken publicly about the shortcomings of the new law, specifically how it gives drunk drivers a “free pass”. The DA in Orange County has been particularly outspoken on this issue. 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!

In Los Angeles I am seeing anecdotal evidence of Judges denying motions for Judicial Diversion on DUI charges on the grounds of “public safety”. This argument will likely be the primary reason raised by prosecutors in driving under the influence cases.

The following is a synopsis of CA law pertaining to this form of Diversion:

Penal Code 1001.95

(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 1001.96

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 1001.97

(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. Many legal scholars agree that Diversion helps to reduce recidivism in the criminal justice system. According to the Author of AB 3234 in the comments of the Assembly Third Reading, “Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment.”  The Author goes on to state “This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.”  

It is anticipated that Courts in Los Angeles will be flooded with motions for diversion in all eligible cases. These requests will surely tax an already overwhelmed Court system.

Despite the many concerns, 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.

Restitution shall be required in all cases, however the indigence of a criminal defendant shall not be a reason to deny a grant of Diversion under the statute. Also, the Defendant will be ordered to comply with any protective orders imposed by the Court.

Many Judges, as well as the California Judicial Commission, have raised concerns about the burden this new law will place on already taxed Courts. Once a motion for diversion is made, a formal hearing will need to be held to determine whether individual cases warrant a grant of diversion which will take time and resources. In fact, the Commission wrote a letter to Governor Newsom asking him to veto the AB3234 legislation because it does not give sufficient funding to the Courts to account for the additional work load. Also, the Judicial Commission was concerned the new law failed to address issues such as how a Defendant would be notified should the Court decide he or she was not complying with the agreed upon terms and conditions of the grant of Diversion.

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.

Lastly, one additional benefit of the California Judicial Diversion law is that is extends protection of the use of the arrest in any future proceedings nor can the arrest be used to deny a person any license.

The applicable statute provides: (a) Upon successful completion of [diversion] …, the arrest … shall be deemed to have never occurred. A Defendant who successfully completed the diversion program 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 the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. This provision makes a resolution of judge diversion very attractive to anyone facing a criminal charge.

Many attorneys have lingering questions about the procedural requirements for bringing a motion to grant diversion under PC 1001.95. For example, can an oral request be made or is a written formal motion required? These questions remain unanswered. I’m hearing from other lawyers that some Judges are are granting oral requests under the new law. Whether a lawyer chooses to request this type of relief in writing or orally will likely depend upon the personality, demeanor and relationship with a particular Judge and Courtroom Prosecutor.

Recently I was successful in getting Judicial Diversion for a client on a public intoxication charge in Torrance by simply asking , orally, for a “Court Indicated”. In another case in Los Angeles LAX Court I attempted the same thing which was met with the Judge telling me to file a written motion and serve it on the prosecution with 10 days notice. This disparity among Courts is typical and expected. So far in 2021 I have had motions granted for charges of embezzlement, theft, drunk in public, possession of a loaded firearm in a motor vehicle, possession of assault weapon, carrying a concealed weapon and possession of a firearm at LAX Airport.

Assuming the Court agrees to the request for conditional dismissal pursuant to PC 1001.95-1001.97 the defendant will need to agree to waive his or her right to a speedy trial and they must consent to the terms of the program. Thereafter the proceedings will be suspended anywhere from 90 days to one year. Any bail posted will be exonerated and the accused will be released on their own recognizance. The disposition shall not be considered a conviction or an admission of guilt for any purpose.

Suitability Factors: Factors to consider in the grant or denial of diversion include the criminal history of the defendant, the circumstances of the offense, the willingness of the defendant to comply with terms imposed by the Court, and prospects of rehabilitation. In Wade vs Superior Court 33 Cal App 5th 694, the Court gave guidance on determining whether a person is a “suitable candidate” for diversion in general. Among the 29 factors considered were: whether the defendant engaged in violent conduct, whether he has a criminal record, whether he or she has previously performed well while on probation, whether a weapon was used, whether harm was done to another person, and whether the defendant acknowledged wrongdoing at an early stage of the proceedings. Also, California Rule of Court 4.414 can offer guidance by establishing criteria used to determine suitability of probation. Both authority has been used when crafting a particular motion for Judicial Diversion.

There are unanswered questions that many attorneys have when they file a Judicial Diversion Motion in California. One is can a Judge require a plea of guilty or no contest in order to grant a motion? Second, can a Court order that a Diverted Defendant be supervised by the Probation Department during the term of Diversion?

The latest chatter among criminal defense attorneys in Los Angeles is that most judges are denying judicial diversion motions for DUI based on a number of different theories. One is that driving under the influence is specifically excluded under Vehicle Code 23640 which precludes diversion for drunk driving. The Appellate Division of the Los Angeles Superior Court has issued an unpublished opinion expressing their belief that Vc23640 does in fact preclude Judicial Diversion for DUI. It will be a matter of time before the Court of Appeals takes up the issue, stay tuned! Some Judges take the position that the charge precludes imposition of the statute due to public safety. Soon the Appellate Courts will sort it all out. If you need help filing a motion or you are a lawyer that would like a copy of Matt’s motion for Diversion Pursuant to Penal Code 1001.95, contact Matt via his website Torrance Criminal Defense Attorney