How Does Misdemeanor Diversion Affect California Criminal Cases?

 Posted on February 03, 2021 in Criminal Defense

On January 1, 2021, California Penal Code section 1001.95 became effective. Referred to as “misdemeanor diversion,” this new law allows a judge to grant diversion to a defendant even over the prosecutor’s objection. It is called a diversion because the criminal case is diverted from prosecution, and it reads as follows:

(a) 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.

(b) 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.

(c) 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.

(d) 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.

It is important to note that this new law does not apply to offenses of stalking or domestic violence. It may apply to DUI cases – by its own terms, it certainly does. The prosecutors are taking the position that another law – Vehicle Code section 23640 – prohibits the court from doing so. As of this writing, we do not have a consistent answer from the courts. 

Contact a Santa Cruz, CA Criminal Defense Attorney

If you are charged with a misdemeanor other than domestic violence or stalking, participating in misdemeanor diversion may keep you from having a conviction placed on your record. This is well worth pursuing. John W. Thornton, Attorney at Law, has extensive experience in defending many types of criminal offenses, including misdemeanors and felonies in California. Call our skilled Santa Cruz, CA criminal defense lawyer today at 831-426-5800 to schedule a free consultation.  

Sources: 

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB282

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB3234