Judicial Diversion in California | Penal Code 1001.95 PC

Judicial Diversion in California - Penal Code 1001.95 PC

If you're facing a misdemeanor charge in California, any mechanism by which you could avoid a criminal conviction might feel like a lifeline. That's where diversion programs come into play.

These programs allow you to fulfill certain requirements, like attending counseling or performing community service, in exchange for having your charges dismissed upon completion of the conditions. Traditionally, enrolling in a regular diversion program required the approval of the district attorney (D.A.), often as part of a plea deal.

Judicial Diversion in California - Penal Code 1001.95 PC

Under PC 1001.95, judges have the authority to grant diversion independently for misdemeanor cases.

However, under Penal Code Section 1001.95, judges now have the power to grant diversion independently, even if the prosecutor objects. This shift empowers judges to ensure a fair and just legal process.

This could open the door to opportunities you didn't have before. Let's break down the difference between regular diversion programs and a PC 1001.95 diversion and how you might benefit. PC 1001.95 diversion offers a hopeful path to a better legal outcome.

California Penal Code 1001.95 says, "(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 receiving notice from 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.

(e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:

(1) Any offense for which a person, if convicted, would be required to register pursuant to Section 290.

(2) Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.

(3) A violation of Section 646.9."

How Do Regular Diversion Programs Work?

Under regular diversion programs, the district attorney plays a big role. They decide if you qualify and what conditions you must meet to have your charges dismissed.

For instance, they might require you to complete a substance abuse program or log a specific number of volunteer hours. If they approve, these terms are usually negotiated as part of a plea agreement. While this process works for some, if the prosecutor doesn't think you deserve diversion, they can deny you.

What Does PC 1001.95 Diversion Offer?

This is where PC 1001.95 improves things. Under this law, judges have the authority to approve diversion for a wide range of misdemeanor offenses.

Not all criminal cases require that you plead guilty. California has enacted many programs, such as civil compromises, military diversion, and expungement, to help alleviate the lifelong effects of having a criminal record.

There is often a misunderstanding about the role a judge plays in a criminal case in California. Typically, 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 case's strengths and weaknesses.

Judges could offer more lenient sentences for defendants who were willing to plead guilty to all the allegations. Still, they could not change the criminal charges and were very limited in their ability to dismiss cases.

Not anymore, though. Penal Code 1001.95 PC, which went into effect on January 1, 2021, allows a judge to offer diversion to defendants charged with misdemeanor crimes throughout the state of California.

Diversion allows a judge to pause a criminal prosecution while the defendant completes several tasks that the judge orders. This means you no longer need the prosecutor's blessing to qualify. Instead, you can ask the judge directly, and they have the final say. Under a PC 1001.95 diversion agreement, the judge may:

Offer you a diversion for up to 24 months.
Set specific programs or conditions for you tailored to your situation.
Dismiss the charges completely if you successfully meet all terms during the diversion period.

This process gives you a second chance to prove yourself-even if the prosecution disagrees.

What are the Exceptions to the Rule?

While this law opens up opportunities, it doesn't apply to every misdemeanor. There are a few important exceptions:

Sex Offenses That Require Registration: If the offense you're charged with would require you to register as a sex offender under Penal Code Section 290, like sexual battery, you're not eligible for diversion under PC 1001.95.
Domestic Violence Charges: Misdemeanor domestic violence cases, such as those involving physical or emotional abuse against a partner, are excluded from PC 1001.95 diversion.
Stalking Charges: If you're charged with stalking, which involves repeated harassment or threats, you won't qualify for diversion under this law.

Why Does PC 1001.95 Matter to You?

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.

Unlike regular diversion programs, this law gives more control to judges. They'll look at factors beyond the prosecution's preferences, such as your circumstances, history, and whether diversion truly helps you turn things around. Here are some of the key benefits:

A Clean Slate: Completing a PC 1001.95 diversion program means your case is dismissed, leaving you without a criminal record. Without a conviction, you'll face fewer obstacles when applying for jobs, housing, or education.
A Path to Rehabilitation: Diversion takes a rehabilitative approach rather than a punitive one. It can give you access to the help you need, whether that's treatment for substance abuse, mental health support, or skills training.
Fairer Access to Programs: Since judges weigh your unique circumstances, you're not automatically excluded because of rigid prosecutorial policies. This levels the playing field and lets the court decide what's fair and appropriate.

What is Showing "Good Cause?"

Getting diversion under PC 1001.95 isn't automatic; you'll need to demonstrate good cause to convince the judge to grant diversion, especially if the D.A. disagrees. This means explaining why you deserve this opportunity and how you'll benefit from it. For example:

Do you have no prior criminal record?
Are there mitigating factors, like mental health issues or personal stress, that contributed to the offense?
Do you have a history of taking responsibility for your actions and wanting to make things right?

The court will consider these factors carefully, but you need to make a strong case. Your best hope of doing so is with the help of a skilled California criminal defense attorney. Whether your best option is to work out a regular diversion with the D.A. or approach the judge directly for a PC 1001.95 diversion, a good attorney will:

Evaluate your eligibility,
Gather evidence to build a persuasive argument,
Negotiate for best terms, and
Advocate for you in court, if necessary.

Who is Eligible for PC 1001.95 Judicial Diversion?

There are some restrictions on who is eligible for judicial diversion. It's only available to people charged with a misdemeanor; it is not available to anyone charged with a felony.

Pursuant to Penal Code 19 PC, a misdemeanor is classified as a criminal charge that is punishable by not more than one 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. Some common offenses that are usually granted include:

Driving without a license (Vehicle Code 12500 VC).
Driving on a suspended license (Vehicle Code 14601.1 VC).
Petty theft (Penal Code 484(a) PC).
Public intoxication (Penal Code 647(f) PC).
Assault or battery (Penal Code 240 or 242 PC).
Hit and run (Vehicle Code 20002 VC).
Vandalism (Penal Code 594 PC).

As noted, several crimes 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, or any offense that would require the defendant to register as a sex offender if convicted.

Also, under Vehicle Code 23640 VC, 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.

It's 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. PC 1001.95 says that granting diversion is "at the judge's discretion."

What are the Terms of PC 1001.95 Judicial Diversion?

If you are successful in convincing the judge to grant your request for judicial diversion, the next step is the terms of your diversion. The judge may not divert your case unless and until you agree to the terms, such as the following:

Duration of judicial diversion. The most important term of diversion is the duration of the diversion program. A judge may divert a case for up to two years, that is, two years from the date the defendant agrees to participate in diversion. However, most cases are diverted for 3-6 months or until the defendant completes all the other terms of diversion.
Educational or instructional course. Diversion often has an educational or instructional component. For example, if the defendant is charged with hit-and-run, a term of diversion may include taking the standard DMV driver safety course. These courses are often available online and take only a few hours to complete.
Community service or labor. As a form of punishment, courts often require the defendant to perform community service. The amount of service can vary substantially and is often dependent on the severity of the offense and the defendant's criminal history. Defendants are permitted to select whatever non-profit organization they want to help.
Restitution. The defendant is usually required to pay any restitution owed to the victim before the case will be dismissed. Examples of restitution include paying for the items taken during a theft and repairing the damages to property caused by a hit-and-run. However, a defendant's inability to pay restitution due to indigence is not grounds for denial of diversion.

There are a few ways a court will approach a defendant's failure to comply with the terms of judicial diversion. Suppose the defendant fails to comply with the terms simply because they ran out of time to complete everything before the diversion was set to expire.

In that case, 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 even to attempt to complete the terms, then the judge may terminate the defendant's 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. For more information, contact our California criminal defense attorneys, Eisner Gorin LLP, based in Los Angeles.

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