Judicial Diversion in California
- Penal Code §1001.95 -
Judicial Diversion - PC 1001.95
Not all criminal cases require that you plead guilty, even if you're caught red handed. California has enacted many programs to help alleviate the lifelong effects of having a criminal record.
This article will focus on one relatively new program, judicial diversion. Below you will find some of the most important information to know when considering judicial diversion.
1. What is judicial diversion under PC 1001.95
There is often a misunderstanding about the role a judge plays in a criminal case in California. Generally, a judge is only there to ensure that all the rules are followed and to decide any disagreements about the law.
Historically, a judge could not do much to assist in settling cases other than encourage the attorneys to negotiate a resolution by pointing out the strengths and weaknesses of a case. Judges could offer more lenient sentences (a.k.a. punishments) for defendants who were willing to plead guilty to all the allegations, but they were unable to change the criminal charges, and were very limited in their ability to dismiss cases.
Not anymore, though. With the enactment of Penal Code §1001.95, which went into effect on January 1, 2021, a judge may offer diversion to defendants charged with misdemeanor crimes throughout the state of California. Basically, diversion allows a judge to pause a criminal prosecution while the defendant completes several tasks that are ordered by the judge.
If the defendant completes all of the terms/tasks, then the judge is required to dismiss the case. What is most important about Penal Code §1001.95 is that the prosecuting attorney – usually, a district attorney or city attorney in Orange County – does not have to agree with the judge’s decision to grant diversion. The judge may grant judicial diversion over the objection of the prosecuting attorney.
Prior to enacting Penal Code §1001.95, defense attorneys would have to convince not only the judge but also the prosecuting attorney to allow a case to be diverted. Defense attorneys often encountered difficulty convincing young, ambitious district attorneys to agree to dismiss a defendant’s case. After all, it is the job of the district attorney to prosecute crimes, not agree to dismiss them.
Some offices like the Anaheim City Attorney’s Office even have office-wide policies prohibiting prosecuting attorneys from offering a defendant diversion. Now that judges have much more leeway in granting defendants diversion and defense attorneys aren’t required to convince the other side to dismiss their clients’ cases, a lot fewer cases are resulting in conviction.
2. What are the benefits of judicial diversion under Penal Code §1001.95?
The main benefit of judicial diversion is that a defendant can avoid having to plead guilty to criminal charges before accepting an offer to settle their case. As mentioned earlier, prior to the enactment of Penal Code §1001.95, there was little a judge could do in negotiating a fair and just resolution to a case.
Defense attorneys were left to negotiate their cases with the district attorney or city attorney prosecuting the defendant. Unfortunately, most of the negotiated outcomes with district attorneys and city attorneys would require a defendant to plead guilty to a reduced charge in exchange for a more lenient penalty.
Although this may sound like a generous offer, it meant that many defendants ended up leaving the courthouse with a criminal record that would follow them around for years to come. Whenever a defendant would apply for employment or housing, there would be a criminal record listing why the person was arrested and all of their convictions. Employers were reneging on job offers and property owners would deny applicants housing, labeling people criminals because of their past wrongdoings.
Under the former structure, the only way to mitigate the effects of a conviction was to request an expungement under Penal Code §1203.4. However, an expungement is much more limited than it sounds. An expungement under Penal Code §1203.4 allows a defendant to go back to court and “withdraw their plea of guilty”, enter a plea of not guilty, and request that the judge dismiss the case. But it does not erase or restrict access to court documents, nor does it wipe away past convictions. The records of your arrest and conviction still exist.
Since judicial diversion doesn't require the defendant to plead guilty, gone are the days of explaining minor offenses.
For example, when applying for a license to be a teacher a defendant would still be required to disclose their conviction and the licensing board would still be able to see the records of arrest and conviction. That is not the case for defendant’s who participate in judicial diversion.
Since judicial diversion does not require the defendant to plead guilty to the charges, the defendant never has to worry about disclosing a conviction or having a conviction on their record. Moreover, whenever the defendant completes the terms of their diversion program, all of the records of arrest associated with the case are sealed so they are only accessible by law enforcement and the court.
3. Who is eligible for judicial diversion under Penal Code §1001.95?
Although few, there are some restrictions on who is eligible for judicial diversion. First and foremost, judicial diversion is only available to persons charged with a misdemeanor offense. Therefore, it is not available to anyone charged with a felony.
Pursuant to Penal Code §19, a misdemeanor is classified as a criminal charge that is punishable by not more than 1 year in the county jail or by more than a $1,000 fine. Misdemeanor offenses are more serious than infractions, but less serious than felony offenses. Common offenses that are usually granted diversion include:
Driving without a license in violation of Vehicle Code §12500.
Driving on a suspended license in violation of Vehicle Code §14601.1 or §14601.2.
Petty theft charges in violation of Penal Code §484(a).
Public intoxication in violation of Penal Code §647(f).
Assaulting someone in violation of Penal Code §240 or §242.
Hit and run in violation of Vehicle Code §20002.
Vandalism charges in violation of Penal Code §594.
That said, there are several crimes that are prohibited from being diverted under Penal Code §1001.95. The statute specifically prohibits a judge from diverting a case where the defendant is charged with stalking, any offense involving domestic violence charges, or any offense that would require the defendant to register as a sex offender if convicted.
Additionally, according to Vehicle Code §23640, a judge may not divert a case where the defendant is charged with driving under the influence. Defendants charged with those crimes will have to find another way to negotiate their cases.
Lastly, it is important to note that a judge is not required to grant a defendant diversion, even if the defendant is not prohibited by law from participating. Penal Code §1001.95 states that granting diversion is “at the judge’s discretion.”
It is a form of leniency that a judge may grant a defendant if the judge believes that the defendant will be successful in complying with the terms of diversion. On the other hand, if a judge does not believe that the defendant will abide by the terms of diversion, the judge may deny the defendant’s request for diversion.
4. What are the terms of judicial diversion under Penal Code §1001.95?
If you are successful in convincing the judge to grant your request for judicial diversion, the next step is to iron out the terms of your diversion. The judge may not divert your case unless and until you agree to the terms.
Duration of judicial diversion –
The first, and often most important term of diversion for defendants is the duration of the diversion program. A judge may divert a case under Penal Code §1001.95 for up to two years. That means two years from the date the defendant agrees to participate in diversion, not from the date of violation nor from the date of filing the criminal action.
Although not unheard of, it is fairly uncommon for a judge to grant diversion for the maximum period of two years. Most cases are diverted for a period of 3-6 months or until the defendant completes all the other terms of diversion.
Educational or instructional course –
Next, there is often an educational or instructional component to diversion. For example, if the defendant is charged with hit and run, a term of diversion may include taking the standard DMV driver safety course.
Or someone charged with petty theft may be asked to complete a theft course through the probation department. These courses are often available online and take only a few hours to complete. Agreeing to take these courses shows the judge that you are willing to take responsibility for your actions and that you are willing to learn from your mistakes.
Community service or labor –
As a form of punishment, courts will often have the defendant agree to perform community service. The amount of community service can vary substantially and is often dependent on the severity of the offense and the defendant’s criminal history. In most cases I have had diverted in Orange County, the judge requires the defendant to complete 40-hours of community service.
The community service does not have to be labor intensive nor performed through the probation department. Defendants are permitted to select whatever non-profit organization they want to help, so long as it is an actual non-profit and the defendant is not compensated by the organization for their service.
Lastly, the defendant is usually admonished that they are not to violate any laws and are required to pay any restitution owed to the victim(s) before their case will be dismissed.
Examples of restitution include paying for the items that were taken during a theft, repairing the damages to property caused by a hit and run, or the cost of medical treatment for victims who suffered a physical injury. However, a defendant’s inability to pay restitution due to indigence is not grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
5. What happens if a defendant is unsuccessful on judicial diversion?
There are a few ways a court will approach a defendant’s failure to comply with the terms of judicial diversion. If the defendant fails to comply with the terms simply because they ran out of time to complete everything before diversion was set to expire, then the judge will usually grant the defendant additional time to complete whatever term they failed to complete. On the other hand, if the judge finds that the defendant took no action to even attempt to complete the terms, then the judge may terminate the defendant’s diversion.
Terminating the defendant’s diversion means that the criminal proceedings against the defendant are reinstated. However, since a defendant on diversion has not pled guilty to committing the violation, the district attorney or city attorney prosecuting the case must still prove the defendant’s guilty beyond a reasonable doubt.
The defendant maintains their right to trial before a judge can impose any punishment. Rather than waste additional time in bringing the defendant to trial, it is often more beneficial to the court and the defendant to have the defendant continue judicial diversion than to reinstate criminal proceedings.
Occasionally, where a defendant commits a new law violation or fails to complete an important term of diversion, the court will offer the defendant a compromise. The court may agree not to terminate judicial diversion if the defendant agrees to perform an additional term. If so, the defendant may either agree to the new term of diversion or ask the court to terminate their diversion and reinstate criminal proceedings.
6. What happens if a defendant successfully completes judicial diversion?
If the defendant completes all the terms of their diversion, then the judge is obligated to dismiss the case at the conclusion of the period of diversion. The judge is not permitted to renegotiate the terms of diversion nor deny the request to dismiss the case once everything is complete.
Moreover, as mentioned earlier, the records relating to the arrest of the defendant must be sealed and may not be used in any way that could result in the denial of any employment, benefit, license, or certificate, unless the defendant consents to its use.
*Please note that successful completion of diversion does not relieve them of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer.*
Judicial diversion is a great way for a defendant facing misdemeanor charges to avoid a conviction by earning themself a dismissal. Every eligible defendant should at least consider the option before setting their case for trial or accepting an offer to plead guilty.
As a local Orange County criminal defense lawyer, I often encourage my clients to perform a cost-benefit analysis before dismissing judicial diversion as a potential resolution. If you would like to discuss the potential benefits of judicial diversion in more detail, call the number above to schedule your FREE consultation today!
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