Humans make mistakes, and it’s long been a cultural understanding that, as long as the offense isn’t above a particular threshold, second chances are a good thing. Up until 2021, though, the law in California didn’t reflect this idea. If someone was charged with a misdemeanor, practically the only way to avoid a trial was with a plea deal, which usually required a guilty plea. This meant a criminal record for the accused, which can have devastating effects on one’s life.
However, the passage of AB 3234 and the creation of Penal Code 1001.95 has given those charged with many different kinds of misdemeanors a possible alternative. The law now finally reflects the idea of deserving a second chance.
The criminal justice system has two tiers of crime: the felony and the misdemeanor. Of the two, the misdemeanor is meant to signal that a crime is not as severe a violation of the law, and those who have committed misdemeanors are less of a concern than those who have committed felonies. However, both felonies and misdemeanors create a criminal record that is recognized through background checks. Having a criminal record of any type can have negative effects on several areas of a person’s life, including:
A criminal record affects more of a person’s life than we often realize. With so much working against anyone with a criminal past, it’s become clear that a pronouncement of guilt, whether by plea or conviction, even in the case of a minor misdemeanor, doesn’t allow anyone what we might really think of as a true second chance. Penal Code 1001.95 changes that.
Judicial diversion is a process that allows a judge to use their own discretion and discernment to forgo a trial and dismiss a charge as long as a few conditions are met. It’s basically a second chance for those who are charged with a wide variety of misdemeanor crimes. There are some crimes that are ineligible for judicial diversion, but the majority of misdemeanors are eligible.
It is important to note that whether or not diversion is granted and what the conditions are, is entirely up to the judge. However, the judge can grant diversion even over the objections of a prosecutor. So the judge will look at the elements of the case and the individuals involved and determine whether or not a diversion program can be implemented in lieu of a trial.
The purpose and benefits of the program are numerous. An obvious reason for the program is that it allows some individuals charged with crimes a chance to avoid a criminal record and all the negatives that come with it. Another reason for the program is the hope that it might reduce part-time offenders. Some of the steps along the way could help reduce recidivism, as could being able to avoid the negative consequences of a criminal record. Far too often, because of someone’s criminal record, they can’t figure out how to get back on their feet and might turn back to criminal activity.
A major factor in repeated criminal activity is a lack of hope. The consequences of a criminal record can often take away a person’s hope. A diversion program may actually give someone in a tough spot some hope. Lastly, the program creates some relief for an overburdened court system. This ensures that the trials addressing more serious matters get heard sooner.
Judicial diversion puts a hold on the trial proceedings for up to 24 months. The judge will then prescribe a program that is designed for the individual and the crime for which they’ve been accused. The program may include things like requiring community service, going through treatment programs, and attending classes for things like anger management. What exactly the program will entail depends on the decision of the judge and the specifics of the case. During the diversion program, the accused may also be given stay-away or protective orders or firearm prohibition. The program will also include full restitution for their crime. If the program is followed and all parts are completed, the judge will dismiss the case altogether.
It’s important to recognize that all parts of the program must be followed. The only exception is that the law makes a provision that if the full restitution is not possible because of indigence, then it cannot be considered as having failed to comply with the terms of the program. In other words, the judge will make a distinction between being unwilling to pay and unable to pay. Also, if someone in the program is not complying with the terms, a judge may have a hearing before the planned end of the diversion program, nullify it, and proceed with the trial process.
Once the diversion is complete and the case is dismissed, the accused has no criminal record. Put simply, the program is a way of seeing that the accused do face some consequences for their crime and go through some steps of rehabilitation but don’t face the burden of a criminal record.
The length of the diversion program is up to the discretion of the judge overseeing the case. The maximum is 24 months, but it may be less.
There are a few charges that are explicitly ineligible for the program, even if they are misdemeanors, including:
There are a handful of other ineligible charges, but it’s important to remember that any charge could be ineligible because whether or not judicial diversion is used depends entirely on the discretion of the judge in the case. That said, hundreds of misdemeanors are eligible, including:
A lawyer can help you understand if your case is one that may be eligible for a 1001.95 diversion program.
Because the judicial diversion program is a relatively recent addition to the law, it’s especially important to have a good lawyer, preferably with some experience, to help make a case for inclusion in a diversion program. Judicial diversion is not automatically granted based on the nature of the charges. The defendant will need to petition the judge for judicial diversion rather than a traditional trial.
Since admission to a diversion program is solely at the judge’s discretion, a petition for diversion will need to argue that the accused should be granted participation based on things like their character, their personal history, and any other relevant facts in their favor. Putting together a quality petition is going to take some care, attention to detail, and experience. Quality legal help from an experienced criminal defense lawyer can help put forward a strong case.
There are a few other diversion programs also available under California law. These may provide an alternative for someone who is unable to get judicial diversion under 1001.95. Alternatively, this may even be a more appropriate first option depending upon the nature of a case. Make sure you discuss all options with a lawyer.
When you have completed every aspect of the diversion program, the judge cancels all charges, and no trial will ever occur. Any arrest related to the case will also be dismissed. It will be as though nothing related to the case had ever happened except for two exceptions. Firstly, if someone who has completed a diversion program is asked directly by a prospective employer about any past arrests, then the arrest related to the diversion must be disclosed. Secondly, the Department of Justice will still have access to information regarding the original arrest and may access that information if whoever completes the diversion program applies to be a peace officer.
Other than those instances, the defendant is free to return to their life without any of the negative consequences and stigma associated with a criminal record.
You want to take every step you can to avoid getting a criminal record. Even if you feel confident in your case, going to a trial always carries the risk of a guilty verdict. With the Penal Code 1001.95 Judicial Diversion program, you may be able to avoid that risk altogether. And given the risks associated with a guilty verdict, you should take every opportunity you have to avoid a trial and criminal record.
To give yourself a strong chance, though, you will want a lawyer who understands the process and can help you make your case. If you are facing misdemeanor charges and want to see if diversion may be an option for you, then contact us today at the Law Offices of Christopher J. McCann, APC.