What is judicial diversion?
Governor Newsom signed Assembly Bill No. 3234 into law on September 30, 2020. (Stats. 2020, ch. 334.) The purpose of this bill, among other things, was to “authorize a judge in the superior court in which a misdemeanor is being prosecuted to offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney, except as specified.” (Stats. 2020, ch. 334.) Under the new law, a misdemeanor case may be diverted for up to two years, and a defendant may be sent to programs the judge deems appropriate, based on the defendant’s particular circumstances. (Stats. 2020, ch. 334.) This law became effective on January 1, 2021.
Who qualifies for judicial diversion?
Judicial diversion is only available for defendants who have been charged with a misdemeanor. (Pen. Code, § 1001.95, subd. (a).) And the new law specifies that individuals who have been charged with any of the following offenses are not eligible for judicial diversion:
- Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
- A violation of Section 273.5.
- A violation of subdivision (e) of Section 243.
- A violation of Section 646.9.
(Pen. Code, § 1001.95, subd. (e)(1)-(4).) In other words, you are not eligible for judicial diversion if you’ve been charged with (1) an offense that would require you to register as a sex offender if convicted, (2) willful infliction of corporal injury, (3) battery, or (4) stalking.
What about DUIs?
While DUI offenses are not specifically excluded under the new law, they may soon be, as pointed out by a recent case:
[W]hen he signed Assembly Bill 3234 on September 30, 2019, Governor Newsom noted in his signing statement that he was “concerned that the crime of driving under the influence was not excluded from the misdemeanor diversion program,” and said he would “seek to expeditiously remedy this issue with the Legislature in the next legislative session.”
(Moore v. Superior Court of Riverside County (2020) 58 Cal.App.5th 561, 581–582, fn. omitted.) Another case noted, “We do not believe it is clear whether DUI offenses are eligible for the new misdemeanor diversion program, and we need not decide the issue.” (Tellez v. Superior Court of Riverside County (2020) 56 Cal.App.5th 439, 449.) Thus, while it appears that people who have been charged with a DUI offense are not currently excluded from seeking judicial diversion, this may not be the case for long.
What do I have to do in order to have my case dismissed under judicial diversion?
Penal Code section 1001.95, subdivision (c) indicates that “[i]f 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.” (Pen. Code, § 1001.95, subd. (c).) Penal Code section 1001.96 similarly states the following:
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.
- 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.
- Comply with a court-ordered protective order, stay-away order, or order prohibiting firearm possession, if applicable.
(Pen. Code, § 1001.96.) Thus, in order to have your case dismissed, you must (1) complete all of the court-imposed conditions; (2) pay any restitution, unless you are unable due to indigence; and (3) comply with any other court orders.
What is the status of my arrest after I successfully complete judicial diversion?
One of the great benefits of judicial diversion is that it essentially erases your arrest. Penal Code section 1001.97, subdivision (a), states that “[u]pon successful completion of the terms, conditions, or programs ordered by the court pursuant to Section 1001.95, the arrest upon which diversion was imposed shall be deemed to have never occurred.” (Pen. Code, § 1001.97, subd. (a).) Similarly, a person who has successfully completed judicial diversion is not required to disclose their arrest. Subdivision (a) indicates that, if diversion is successfully completed, “[t]he defendant may indicate in response to any question concerning their prior criminal record that they were not arrested.” (Pen. Code, § 1001.97, subd. (a).)
What should I do if I think I might qualify for this program?
If you think you might qualify for judicial diversion, you should immediately notify your public defender or defense attorney. It is important that you do so before you plead guilty or no contest. Your attorney will then speak with the prosecutor and trial judge regarding whether judicial diversion is a possibility for you.
At least one case in California has pointed out that, unlike other diversion laws, the judicial diversion statute “does not use the adjective ‘pretrial’ to modify ‘diversion’ or require a speedy trial waiver.” (People v. Braden (2021) 63 Cal.App.5th 330, 336, fn. 3.) This would appear to suggest that judicial diversion is available even after trial starts. Nevertheless, the law is not clear on this point, and a person who thinks they may qualify for judicial diversion should immediately talk with their defense attorney regarding their options.