Keeping Your Record Clean with Misdemeanor Diversion in CA

If you or a loved one are facing misdemeanor charges in California, it is important to understand your options and to work with an experienced criminal defense attorney who can help you try to avoid a criminal conviction on your permanent record. California Penal Code § 1001.95 lays out the process and eligibility for misdemeanor diversion. This section of the penal code was codified by Assembly Bill 3234 in 2020 and became effective law on January 1, 2021. It provides for an alternative to criminal prosecution and was created to give eligible individuals the chance for a clean slate in certain misdemeanor cases.

What is “Diversion?”

California Penal Code § 1001.95 allows judges in misdemeanor court to “divert” or essentially postpone criminal proceedings against an individual with the end goal of having the case dismissed and all charges dropped. Judges have discretion to accept or deny an offer of diversion, even if the prosecutor is opposed to it.

If an individual is granted the opportunity for diversion, they must enter into an agreement with the court (not the government) regarding the specific terms of the diversion. Such terms can include not violating any other laws, community service, substance abuse treatment programs, parenting courses, anger management classes, domestic violence courses, paying victim restitution, etc. The terms will be individually tailored to the individual and specifics of the case. The terms are often negotiated between the parties and meant to address the court and prosecutor’s concerns so they may be satisfied the charged individual will be reformed through diversion.

The judge will dismiss the criminal charges at the end of the diversionary period if the individual is deemed to have “satisfactorily” completed the terms of the diversion agreement. Not only would this dismiss the criminal proceedings and charges, but the arrest upon which the diversion was based shall be deemed to have never occurred. This means that one could walk away with no charges and a clean record—exactly what Assembly Bill 3234 aimed to do.

Overview of the Diversion Process

Step 1: Eligibility

The first step in the process is to consult with your attorney and determine if your misdemeanor charges are eligible for misdemeanor diversion.

Type of Offense:
Not all misdemeanors are eligible. In fact, certain misdemeanors are explicitly ineligible and will never be considered for diversion. Such ineligible offenses include:

• Any offense for which, if convicted, would require registration with section 290 [sex offender registration]
• Any offense in violation of section 646.9 [stalking]
• Any offense in violation of section 273.5 [corporal injury to a spouse or cohabitant]
• Any offense in violation of section 243(e) [domestic battery]
• DUI’s

One of the most common questions asked regarding misdemeanor diversion is: are DUI’s eligible under § 1001.95? The answer under the current law is no.

DUI’s are considered serious offenses in California and are not eligible for diversion, even though they are no longer specifically excluded by the statute. Penalties for DUI’s often include some combination of probation, jail time, fines, and license suspensions. DUI’s, however, may still be able to be negotiated to avoid driving under the influence charges and later expunged after probation is complete. It is important to talk to your criminal defense attorney about the ways to avoid DUI charges and reduce potential penalties when diversion is not an option.

If the criminal charges you face fall into any of these ineligible categories, you may still be eligible for other dispositions, such as military or mental health diversion. It is critical to consult with your criminal defense attorney to learn more and understand all the diversionary options under California law.

Step 2: Request for Diversion

As discussed, a grant of diversion is ultimately up to the judge and does not depend on the position of either party. It is helpful, however, for defense counsel to meet and confer with the prosecutor prior to going before the judge to discuss if diversion can be agreed upon. Defense counsel has the option of filing a formal motion for diversion to which the prosecutor can respond in either agreement or opposition. Defense counsel can also meet with the prosecutor informally, reach an agreement as to the terms of diversion, and ask the judge to grant diversion based on that agreement for the first time on the record. In either scenario, defense counsel would propose certain terms of diversion and the prosecutor would agree to or oppose such terms. It is often preferred by the judge, however, when the parties have some kind of agreement ahead of time before requesting diversion on the record.

Step 3: Diversion Terms and Conditions

If a diversion agreement is approved by the judge, the defendant will sign a formal diversion contract outlining the agreed upon terms and time frame of diversion. In addition to the specific individual terms (such as mental health counseling, community service, substance abuse treatment, parenting courses, etc.), the defendant must agree to the following:

1. They are the defendant in the case, which charges [insert specific misdemeanor charges] for which they are requesting misdemeanor diversion;
2. They have been advised of, and understand, and waive their right to a speedy trial;
3. They understand that if diversion is granted, it will be no longer than two years and may include terms and conditions imposed by the court, including but not limited to a victim restitution order, protective order, stay-away-order, and/or firearm prohibition order, where applicable;
4. They understand that if misdemeanor diversion is granted, failure to comply with the terms and conditions imposed by the court may result in reinstatement of criminal proceedings;
5. They understand that if they are arrested or charged with a new criminal offense while on misdemeanor diversion, criminal proceedings in this case may be reinstated and they may be found no longer eligible for misdemeanor diversion;
6. They understand if they perform satisfactorily during the period of misdemeanor diversion, the court will dismiss the criminal charges. They understand that, upon successful completion of misdemeanor diversion and dismissal of the charges, the arrest upon which the diversion was based shall be deemed to have never occurred, except as stated in the statement below;
7. They have been advised and understand that, regardless of their successful completion of misdemeanor diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request, and that they are still obligated to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Pen. Code § 830; and
8. They declare under penalty of perjury that they have read and understand each of the foregoing statements and must initial each statement to agree to the contents.

Step 4: Completion of Diversion

Upon successful completion of diversion, meaning that the defendant satisfactorily performed during the period of diversion, the court will dismiss the charges and the arrest upon which the diversion was based shall be deemed to have never occurred. As discussed, however, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request, and that the defendant remains obligated to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Pen. Code § 830. Put simply, the only time the arrest may come up is if you apply to be a law enforcement officer.

Legal Assistance with Misdemeanor Diversion

The misdemeanor diversion process can be complex and confusing. It is important to consult with an experienced criminal defense attorney to evaluate your eligibility for diversion, negotiate the terms of diversion, and work with you to ensure successful completion.

Fortunately, we are here to help. At the Law Offices of David Silldorf in San Diego, we understand that any criminal charges, no matter how serious, are stressful and navigating the legal process is daunting. We have helped countless clients successfully pursue misdemeanor diversion and move forward with a clean record. Our goal is to clarify any confusion with the process, reduce costs, and get our clients the best result possible. Call us today to see if we can help you!