California recently dramatically expanded the opportunities for diversion in misdemeanor cases with the enactment of Assembly Bill 3234.
While existing law offers some diversion opportunities in specific types of cases, such as those involving mental health issues or drug addiction, many charged offenses are not eligible for diversion. Still others render defendants ineligible if they have prior arrests or convictions.
In practice, the prosecuting agency is often the gatekeeper for diversion eligibility and a judge will not grant diversion except in cases where the parties agree it is appropriate.
Assembly Bill 3234 allows many people to have their cases dismissed and erased from their records after successful completion of a diversion program, including convicted drunk drivers.
The bill is based on a Los Angeles County diversion pilot program that excluded DUI, weapons charges, and most crimes against children, but AB 3234 doesn't include any of these exclusions.
However, a defendant can't be offered diversion for a wide range of crimes, such as domestic battery, staking, and sex crimes requiring registration under Penal Code 290 PC
In order to give readers a better understanding on California Assembly Bill 3234 (AB 3243), our Los Angeles criminal defense attorneys are providing a review below.
AB 3234 Gives a Judge Discretion to Grant Diversion
Under AB-3234, a judge has discretion to impose diversion, except in limited cases discussed below, in a misdemeanor case even over the objection of the prosecuting agency.
Under the statute, a judge in the superior court which a misdemeanor is being prosecuted:
- may offer diversion to the defendant if they deem it appropriate, and;
- if the defendant accepts the offer of diversion;
- judge can continue the case for up to 24 months.
During that time, the defendant will be required to comply with appropriate terms and conditions.
Terms and conditions of the diversion program
The terms are fashioned by the judge as well as to complete any programs or other obligations which are appropriate given the circumstances of the case and the defendant's history. This could include:
- community service,
- drug treatment,
- anger management, or
- any combination of terms and conditions which are tailored to the specific defendant.
In all cases, however, the defendant must pay full restitution to any victim who suffered a loss and comply with any protective order issued in the case.
The defendant's financial inability to pay restitution, however, shall not be grounds for finding that the defendant has violated the terms of diversion.
What Are the Benefits of the AB 3234 Misdemeanor Diversion?
If successful, this misdemeanor diversion is a massive benefit to the defendant. Not only will the case be dismissed completely, leaving the defendant with no record of conviction, but the underlying arrest will be deemed never to have occurred.
This form of diversion provides an additional benefit over other similar programs in that the defendant is not required to plead guilty in advance.
Impact on federal issues
This has a potentially major impact on federal issues such as immigration and licensure, as federal law tends to treat a guilty plea, even if later withdrawn pursuant to a diversion, as a conviction as opposed to California law which considers judgment final upon imposition of sentence.
For defendants who do not successfully complete the misdemeanor diversion, the lack of an upfront guilty plea also preserves their right to litigate their case in a jury trial should it become necessary.
What California Misdemeanor Crimes Are Not Eligible for Diversion?
As stated above, almost all misdemeanors are eligible under the newly enacted AB-3234 for diversion consideration.
Several, however, are not. AB-3234 misdemeanor diversion is not available for those defendants charged with:
- Penal Code 243(e)(1) PC – domestic battery;
- Penal Code 273.5 PC – corporal injury to spouse;
- Penal Code 646.9 PC – stalking;
- a misdemeanor sex-related offense which would subject the defendant to registration as a sex offender under California Penal Code 290 PC;
As you can see, defendants charged with certain domestic violence offenses and sex crimes are ineligible to enjoy the benefit of the new diversion program.
Presenting an Effective Petition for the Trail Court
As imposition of misdemeanor diversion under AB 3234 is a matter of discretion for the trial court, it is essential that the defendant present a persuasive and effective petition which highlights issues of proof, mitigating factors concerning the:
- defendant's history,
- character,
- background, and
- all other relevant factual and legal arguments in support of a request for diversion.
Discretion is a two-edged sword. While the new statute allows a judge, even over a prosecutor's strong objection, to impose diversion except in very limited circumstances, the new statute also vests discretion in the court not to offer diversion.
There is no mechanism to legally compel the judge to grant diversion in a particular case. For that reason, persuasion is essential to maximizing the chances of a successful outcome.
Criminal Defense for California Crimes
If you, or someone you know, is charged with a misdemeanor offense which qualifies for diversion consideration under the newly enacted AB 3234, contact our team of experienced Los Angeles criminal defense attorneys.
We will work with you to craft the most effective petition tailored to your individual circumstances.
Eisner Gorin LLP is a nationally recognized criminal defense law firm that represents people throughout Southern California, including Los Angeles County, Ventura County, Orange County, Santa Monica, Hollywood, Riverside and San Bernardino.
Our office is located at 1875 Century Park E #705, Los Angeles, CA 90067. Our main office is in the San Fernando Valley next to the Van Nuys Superior Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for an immediate consultation at (877) 781-1570.
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