The following discusses California's new judicial diversion law for misdemeanor offenses. For further information, contact our criminal defense lawyers today for a free consultation.
What is Pretrial Diversion?
A criminal court diversion program is a process whereby the prosecution of a criminal defendant is circumvented, or diverted, so that the defendant can enjoy the benefits of a dismissed criminal allegation if she fulfills conditions of her diversion program.
Essentially, to divert a criminal prosecution means the district attorney and the criminal court judge agree to suspend the criminal charges against the defendant if, and until, the defendant fulfills her “conditions of diversion.” If the defendant fulfills her conditions of diversion, then she will have her criminal charges dismissed.
For example, in a misdemeanor prostitution case, the district attorney might offer the defendant a diversion program whereby the defendant can have her criminal prostitution charges dismissed so long as she fulfills certain probation-like conditions. If the defendant fulfills these diversion conditions, then the judge will dismiss the prostitution charges against the defendant as agreed.
Note: The criminal court judge must approve of the PC 1001.95 judicial diversion program even if the district attorney and the criminal defendant otherwise agree that the defendant will enter a diversion program. Similarly, the district attorney cannot dismiss a criminal charge against a defendant after the district attorney has officially charged the defendant with a crime. Only the judge can dismiss a criminal charge after the criminal case has been filed (PC 1385 Dismissal Law).
New California Law (PC 1001.95)
There are several types of diversion programs in California. In fact, some counties have crime-specific diversion programs. However, California has a new diversion program that a defendant may request from a criminal court judge even if the district attorney does not otherwise approve. This new diversion law is Pretrial Judge-Ordered Diversion (PC 1001.95).
Note: PC 1001.95 was added to the California Penal Code in 2021 (PC 1001.95 was introduced as Assembly Bill 3234 [AB3234]). The purpose of the law was to assist criminal defendants in avoiding criminal records that lead to the harsh collateral consequences that follow from a criminal conviction, including professional licensing consequences, military service consequences, and immigration consequences.
Regular Diversion v. PC 1001.95 Diversion: Ordinarily, a district attorney must approve of the defendant entering a diversion program in order to avoid criminal prosecution. This approval is usually made as part of a plea bargain agreement between the district attorney and the defendant (through defendant’s attorney). The new diversion law allows a judge to grant a diversion program to a defendant even if the district attorney does not approve of the judge’s decision.
Note: New PC 1001.95 law only applies to certain misdemeanor crimes. The good news is that PC 1001.95 applies to hundreds of misdemeanor code sections (See PC 1001.95 Diversion Qualifying Offenses below).
PC 1001.95 & PC 1001.96 Text
PC 1001.95
A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions (PC 1001.95(a)).
A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation (PC 1001.95(b)).
If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant (PC 1001.95(c).
If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings (PC 1001.95(d)).
A defendant may not be offered diversion pursuant to this section for any of the following current charged offense (PC 1001.95(e)).
Any offense for which a person, if convicted, would be required to register pursuant to Section 290 (PC 1001.95(e)(1)). See 1. Non-Qualifying PC 1001.95 Diversion Sex Offenses Below.
Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code (PC 1001.95(e)(2)). See 2. Non-Qualifying PC 1001.95 Diversion Domestic Violence Offenses Below.
A violation of Section 646.9 (PC 1001.95(e)(3)). See 3. Non-Qualifying PC 1001.95 Diversion Stalking Offenses Below.
PC 1001.96
A defendant who is diverted pursuant to this chapter shall be required to complete all of the following in order to have their action dismissed:
Complete all conditions ordered by the court (PC 1001.96(a)).
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 the defendant has failed to comply with the terms of diversion (PC 1001.96(b)).
Comply with a court-ordered protective order, stay-away order, or order prohibiting firearm possession, if applicable (PC 1001.96(c)).
Common Diversion Conditions
Conditions of diversion are designed to remedy the wrongs created by the charged offense (i.e., restitution, criminal protective orders, etc.); to rehabilitee the defendant if possible (i.e., anger management classes, domestic violence classes, registration as a gang or arson offense, etc.), and to punish the defendant as well as protect society from further criminal conduct by the defendant (i.e., “John” registration on district attorney website for prostitution offenses, HIV testing, HIV classes, fines, court fees, work release, community service, etc.).
Every case is different so every diversion program will be different (in terms of diversion conditions). With the said, common diversion program conditions include: obey all laws from six (6) to twenty-four (24) months, anger management classes; do not drive without a valid license; child abuse and counseling classes, restitution, diversion program fees, criminal protective orders (CPO), diversion classes, and more.
Additional PC 1001.95 Requirements
As indicated in PC 1001.95(a), the criminal court has “discretion” as to whether she will allow the defendant to enter a diversion program. This means that the defendant must demonstrate good cause (good reasons) for the judge. Good cause should be indicated in a written declaration and filed with the court. The declaration should be made under penalty of perjury, and it should indicate all the reasons a defendant should be granted her pretrial diversion request. This should only be completed with the assistance of a criminal defense attorney as declaration themselves are statements that can lead to either further criminal prosecution, civil lawsuits, and/or disqualification of the pretrial diversion request.
Important: Contact a criminal defense lawyer before making any statement in a PC 1001.95 pretrial diversion request. A criminal defense lawyer will be able to give you the best advice and best chances for qualifying for pretrial diversion. Additionally, a criminal defense attorney can help you avoid the common mistakes made with PC 1001.95 diversion applications, including the defendant making of statements that are against her legal interest.
Non-Qualifying Offenses
The following is a partial list of the crimes that do not qualify for pretrial diversion under California’s new PC 1001.95 diversion law:
Felony Criminal Offense: As stated, California’s new PC 1001.95 diversion program only applies to misdemeanor offenses.
1. Non-Qualifying PC 1001.95 Diversion Sex Crimes: PC 1001.95 Diversion is not permitted in any case when the defendant is ordered register as a sex offender pursuant to PC 290, including, but not limited to, the following:
Misdemeanor Sexual Battery (PC 243.4);
Misdemeanor Indecent Exposure (PC 314);
Misdemeanor Annoy or Molest a Child (PC 647.6);
Misdemeanor Possession of Child Porn (PC 311.11);
Misdemeanor lewd and lascivious acts (PC 288(c));
Note: Neither misdemeanor Unlawful Sexual Intercourse (Formerly called “Statutory Rape”), nor invasion of privacy (aka “Peeping Tom Crimes), nor Soliciting Prostitution, nor Loiter with Intent to Commit Prostitution, are disqualified under PC 1001.95, unless the district attorney specifically charges a PC 290.006 (Sex Offender Registration by Court Order). This means that misdemeanor statutory rape, misdemeanor peeping tom, misdemeanor prostitution, and misdemeanor loiter with intent to commit prostitution, will ordinarily qualify for pretrial diversion under PC 1001.95. This is true even though these crimes are ordinarily considered “sex crimes” in the general public.
2. Non-Qualifying PC 1001.95 Domestic Violence Offenses: PC 1001.95 Pretrial diversion is not permitted in misdemeanor domestic violence crimes, including, but not limited to, the following: misdemeanor Inflict Corporal Injury to Spouse (PC273.5(a)-M); misdemeanor Battery on a Cohabitant (PC243(e)(1)-M); Misdemeanor Willful Child Endangerment (PC273a(a)-M), and more.
Note: A domestic violence must be specifically plead for the defendant to not qualify for PC 1001.95 pretrial diversion. For example, if the district attorney alleges that the defendant committed a simple battery against a family member, but the district attorney does not allege a family relationship between the defendant and the victim, then the defendant may nevertheless qualify for a PC 1001.95 diversion. This is one of the important reasons it is beneficial to sometimes engage in pre-filing litigation through a criminal defense attorney, if possible and available.
Remember, after a district attorney chooses a domestic violence criminal charge, as opposed to a closely related criminal charge without the domestic relationship allegation, PC 1001.95 diversion through the criminal court judge is not available.
3. Non-Qualifying PC 1001.95 Diversion Stalking Offenses: PC 1001.95 Pretrial diversion is not permitted in misdemeanor stalking cases, including any allegation of PC 646.9 (Stalking).
4. DUI Offenses: PC 1001.95 does NOT apply to DUI offenses, including any DUI offenses charged under VC23152, VC23153, VC23140, or HN665.
Note: PC 1001.95 specifically excludes certain types of criminal offenses and DUI crimes are not listed in that list of excluded offenses. Nevertheless, DUI crimes are specifically excluded from diversion-type programs pursuant to VC 23640. At first glance, these two California codes appear to be inconsistent (PC 1001.95 v. VC 23640). The Court in Grassi v. Superior Court of Orange County (2021) resolved this apparent inconsistency by announcing that VC 23640 was not impliedly repealed with the adoption of PC 1001.95. The result is that misdemeanor DUI crimes, while not specifically excluded from PC 1001.95 judicial diversion, are nevertheless excluded via VC 23640. For more information, contact our DUI attorneys for other pretrial and trial defense options.
PC 1001.95 Qualifying Offenses
The list of misdemeanor criminal offenses that qualify for California’s new PC 1001.95 pretrial diversion is extensive. The following list of qualifying diversion offenses is only partial, but it includes the most common crimes that are PC 1001.95 eligible:
Possession of Drug Paraphernalia (HS 11364), Welfare Fraud (WI 10980), Public Intoxication (PC 647f), Simple Assault (PC 240), Simple Battery (PC 242), Brandishing a Weapon (PC 417), Commercial Burglary (PC 459), Contracting Without a License (BP 7028), Criminal Threats (PC 422(A)-M), Disturbing the Peace (PC 415), Petty, Theft (PC 484, 488, & 490.5), Evading Police (PC 2800.1 & 2800.2), Vandalism (PC 594), Possession of Burglary Tools (PC 466), Unauthorized Use of Vehicle (PC10851(a)-M), Possession of a Controlled Substance (HS 11350(a)), Prostitution (PC 647(b)(1)-M)), Loiter w/Intent to Commit Prostitution (PC653.22(a)-M), Hit and Run Driving (VC 20002), Trespass (PC 602), Criminal Storage of a Firearm (PC 25100), Accessory After the Fact (PC 32), Annoying or Harassing Phone Calls (PC 653m), Illegal Gambling (PC 330), Resisting Arrest (PC 148(a)(1)), Filing a False Police Report (PC 148.5), Looting (PC 463), Contributing to the Delinquency of a Minor (PC 272(a)(1)), Misdemeanor Welfare Fraud (WI10980) and more.
Note: Diversion is available in the above-listed criminal offenses; however, diversion is at the discretion of the court, and any case where there is either a large amount of restitution owed to a victim, or where the defendant caused personal injury to another person, the judge is much less likely to grant a PC 1001.95 pretrial diversion request. Also, if the defendant is not likely to gain personal insight related to her wrongdoing by entering a diversion program, then the court is less likely to grant diversion (i.e., defendant’s long criminal history, lack of remorse, prior failure to appear charges, etc.).
What If I Drop Out of Diversion
The judge may terminate the defendant’s diversion program if the defendant fails to perform her diversion program conditions. For example, if a diversion program condition requires the defendant to pay restitution to the victim, and the defendant fails to pay the restitution, then the judge may terminate the defendant’s diversion program and reinstate criminal proceedings against the defendant.
Note: Failure to pay restitution is not a violation of either a diversion program or a probation sentence if failure to pay is due to inability to pay, as opposed to willful failure to pay. For example, if the defendant is ordered to pay restitution as part a diversion program, but after the defendant enters the diversion program she loses her job, then the defendant will not be in violation of her failure to pay restitution (assuming she has no other means of paying the restitution other than her employment). However, if a defendant cannot pay according to her diversion program (or probation sentence), the defendant should contact a criminal defense attorney without delay to bring the issue to the judge without unreasonable delay.
Court Hearing: The defendant has a right to a court hearing on the issue of any alleged violation of the terms of her diversion program (PC 1001.95(d)). The defendant has a right to have an attorney represent her at the court hearing. If the defendant is found to be in violation of the diversion program conditions (after the court hearing), then the defendant may either be reinstated into the diversion program (for good cause), or terminated from the diversion program. If the defendant is terminated from the PC 1001.95 diversion program, then criminal proceedings will be reinstated against her.
Dismissal of Criminal Charges
If the defendant does complete the diversion program conditions, then the judge will dismiss the criminal charges against the defendant (PC 1001.95(c)). If the judge dismisses the criminal charges after a diversion program the defendant is not obligated to disclose the fact of a diverted prosecution to private companies (Some exceptions may apply). However, a PC 1001.95 judicial diversion does not mean that the defendant is entitled to falsely report her diverted prosecution to government agencies, including California licensing agencies, federal immigration agencies, military branches, and more. Contact a criminal defense lawyer to learn the benefits and limitations of PC 1001.95 judicial diversion.
Note: PC 1001.97(b) specifically states that a defendant has an obligation to disclose a diverted criminal prosecution or the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830 (PC 1001.97(b)).
PC 1001.95 Forms & Samples
Several California counties have provided a PC 1001.95 form, including Napa County (PC 1001.95 Form Napa County), and Santa Barbara County (PC 1001.95 Form Santa Barbara County). These forms do not provide information on the drafting of declarations necessary to persuade the criminal court judge to use her discretion in granted the diversion request. However, these forms serve as a good legal foundation for drafting PC 1001.95 motions in general.
PC 1001.95 Sample: At this time, there is no PC 1001.95 form for San Bernardino County, however, this PC 1001.95 sample motion should be useful for judicial diversion requests in counties that do not provide a PC 1001.95 form or sample motion, including San Bernardino County.
For more information on judicial diversion, or PC1001.95, contact our criminal defense lawyers for a free consultation. Our criminal defense attorneys defend against all misdemeanor and felony charges in San Bernardino County, including the cities of Redlands, San Bernardino, Fontana, Rialto, Colton, Hesperia, Victorville, Ontario, Chino, Rancho Cucamonga, Yucaipa, Adelanto, and more. There is no charge for a first-time, in-office consultation. Call today!
909-913-3138
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