Thanks to Assembly Bill 3234, enacted on January 1, 2021, California now offers more expansive misdemeanor diversion opportunities. The new law extends diversion eligibility to offenders charged with misdemeanor assault, criminal threats, elder abuse, DUI, and carrying a concealed firearm, among other crimes. Even though some defendants remain ineligible for the alternative sentencing, California's misdemeanor diversion statutes allow more people to avoid serving time and maintain clean criminal records.

Some of the offenses that can make you ineligible for alternative sentencing under AB 3234 include sex crimes, stalking, and domestic battery. On the other hand, qualifying for diversion offers numerous benefits, including that defendants do not need to plead guilty in advance. You can still defend yourself in the trial if you fail to complete the diversion program successfully.

California's Misdemeanor Diversion Programs Explained

Under Assembly Bill 3234, judges have the discretion of granting misdemeanor diversion instead of a jail sentence. The diversion runs for up to two years, where the defendant must abide by some set terms and conditions. As long as you stick to the rules, the court will dismiss the case and seal all records allied with your arrest. It will be as though the incident that got you arrested never happened.

The core aim of misdemeanor diversion is to give offenders a chance to seek treatment and education instead of spending time behind bars. Programs are designed to help the defendants to reform and rejoin society safely. You can maintain your job, protect your reputation and save yourself from a criminal record that can have a lingering effect for years after a conviction.

There are three main diversion programs in California:

Drug Diversion — Penal Code Section 1000 PC

Penal Code 1000, formally known as deferred entry of judgment, DEJ outlines the "pretrial diversion" law. Under the statute, low-level drug offenders can have their cases dismissed and their records sealed after completing drug rehabilitation. 

After 2018, offenders eligible for pretrial diversion do not have to enter a guilty plea in advance. If you fail to complete the program, the court will not find you guilty of the charges automatically. Instead, your case will proceed, and you can defend yourself in front of a judge during a bench trial. https://bitcoinbetsport.com

Penal Code 1000 pretrial diversion offers jail time relief to eligible offenders, irrespective of the involved drug. Common drugs that end people in trouble include Marijuana, heroin, cocaine, ecstasy, and hallucinogenic substances like PCP. However, the judge will be less focused on the type of drug involved and keener on establishing whether:

  • The crime involves drug possession for personal or recreational use
  • The offender is likely to reform through drug treatment

Other eligibility requirements for pretrial diversion under Penal Code 1000 include:

  • The offender must not have a prior drug crime conviction within the past five years that is exempt from alternative sentencing under PC 1000.
  • The defendant must not have a past felony conviction within the last five years.
  • The current charge must be for non-violent drug possession.
  • The accused must not be facing another charge other than the current drug offense.

Offenders accused of the following drug crimes could be eligible for pretrial diversion under Penal Code 1000 as long as they meet the above mentioned requirements:

  • Possession of a controlled substance — HS Code 11350
  • Under the influence of a controlled substance — HS Code11550
  • Aiding or abetting the unlawful use of a controlled substance — HS Code 11365
  • Illicit cultivation of Marijuana for personal use — HS Code 11358 
  • Possession of an open container of Marijuana in a Vehicle — VC 23222 (b)
  • Illegal possession of controlled prescription sedatives — HS Code 11375(b)(2)
  • Possession of methamphetamines (meth) for personal use — HS Code 11377
  • Possession of drug paraphernalia — HS Code 11364
  • Lewd conduct allied with being under the influence of a controlled substance — Penal Code 647 (f)
  • Possessing toxic substances for "huffing — Penal Code 381

Pretrial diversion under Penal Code 1000 lasts between 12 and 18 months. The defendant will remain under the close supervision of a probation officer and has to settle the costs related to participation in a pretrial diversion program. It is imperative to note that the court can terminate the program if an offender fails to undergo the recommended treatment or comply with the probationary terms and conditions.

Mental Health Diversion — Penal Code Section 1001.36 

Misdemeanor offenders can also qualify for mental health diversion instead of prison time under Penal Code 1001.36. Lawmakers enacted the statute on June 27, 2018, after passing California Senate Bill 8. Mental health diversion is another type of pretrial diversion where the court dismisses all charges against the defendant upon completion of treatment. Also, the court orders the sealing of records, making it seem as though an arrest never happened.

Under California PC 1001.36, both misdemeanor and felony offenders can qualify for mental health diversion if they have schizophrenia, bipolar, post-traumatic stress disorder (PTSD), or schizoaffective disorder.

Also, defendants must satisfy all of the following requirements:

  • The accused must suffer from a mental health condition other than pedophilia, antisocial personality disorder, or borderline personality disorder.
  • The current charges must be linked to the offender's mental disorder.
  • The condition must be treatable through mental health programs.
  • The accused must consent to receive treatment by waiving their right to a speedy trial (sixth amendment of the U.S. constitution)
  • The court must satisfy that the defendant will not unreasonably jeopardize public safety.

Like all other alternative sentencing options, the court can terminate mental health treatment if an offender commits another offense during the pretrial diversion. The same can happen if the defendant fails to perform satisfactorily. If a judge terminates pretrial diversion, the criminal proceedings against the offender will commence.

There are stack similarities between the proposed Senate Bill 215 and Penal Code Section 1001.36 mental health diversion. Under Senate Bill 215, enacted in 2018, lawmakers created the new law defined under Penal Code Section 1001.82. It states that mental health diversion is only available to misdemeanor or felony offenders whose offenses are punishable through imprisonment in county jail. This locks out defendants whose crimes attract a state prison penalty.

The felony offenses that still qualify for mental health diversion include drug crimes, gun crimes, manslaughter, DUI causing injury, and child pornography. However, even with a qualifying mental health diagnosis, offenders charged with sex crimes that require sex offender registration under Penal Code 290 cannot benefit from diversion under PC 1001.36.

Other offenses exempt from the diversion program include:

  • Murder — Penal Code 187
  • Rape — Penal Code 261
  • Voluntary manslaughter — Penal Code 192(a)
  • Continuous sexual abuse of a child — Penal Code 288.5
  • Assault with intent to commit a felony — Penal Code 220

Military Diversion — Penal Code Section 1001.80

Another form of misdemeanor diversion program is military and veteran diversions. Penal Code Section 1001.80 alternative sentencing is only available to former military members or those in service. Under the statute, only misdemeanor offenders eligible for probation qualify for the diversion program.

Another crucial qualification is that the defendant must show that they developed a condition during their time in service. Some of these conditions include:

  • Substance abuse
  • Post-traumatic stress disorder (PTSD)
  • Traumatic brain injury (TBI)
  • Sexual trauma
  • Mental health problems

If the court grants misdemeanor diversion, the defendant must abide by the program's terms and conditions. They could include mandatory substance abuse or alcohol treatments or mental health rehabilitation.

One of the benefits of diversion under Penal Code Section 1001.80 is that the offender does not need to enter a guilty plea. Once you waive your right to a speedy trial, the judge will suspend criminal proceedings as you undergo treatment or education. Offenders who complete the program have their charges dismissed and their records sealed.

Military diversion lasts between 12 and 24 months. Offenders need to commit to following the probationary terms because the court can terminate the program because of unsatisfactory performance. If a program is terminated, the defendant will continue with the criminal case as though military diversion never happened.

Another diversion program available to military veterans is Penal Code Section 1170.9. It shares similarities with diversion under Penal Code Section 1001.80, the main difference being that the offender must plead guilty or no contest. Also, the court will hold a hearing to determine an offender's eligibility, where qualified ex-veteran defendants are sentenced to treatment instead of incarceration.

Other differences include:

  • Treatment can last for more than two years but no longer than the defendant would have spent in prison
  • The time spent in a residential treatment program earns the offender sentence credits

California Misdemeanor Diversion Exceptions 

Assembly Bill 3234 gives more misdemeanor offenders a chance to maintain a clean criminal record and stay out of jail. Even if the prosecution objects, the judge has the final say on whether to grant or deny misdemeanor diversion.

Unfortunately, there are certain crimes exempt from this alternative sentencing option. They include:

  • Domestic battery — Penal Code Section 243(e)(1)
  • Stalking — Penal Code Section 646.9
  • Corporal injury to spouse — Penal Code Section 273.5

Generally, offenders charged with specific sex offenses and domestic violence are excluded from benefiting from the new AB 3234 diversion programs. Also, even though the Assembly Bill makes diversion available to DUI offenders, it is crucial to note that this remains unstandardized in the justice system. Some judges still refuse to grant diversion for DUIs. https://bitcoinbetsport.com 

Even if you qualify for misdemeanor diversion, note that it is common for prosecutors to object to alternative sentencing. It is imperative to have a competent attorney in your corner if you want to have optimal chances of avoiding prison time and maintaining a clean record. A criminal defense attorney can also create a strong defense strategy to increase your odds of an acquittal in case you do not qualify for alternative sentencing under AB 3234. Most importantly, the expert will evaluate your case and inform you about other alternative sentencing options available to you.

How to Get California Misdemeanor Diversion

If a judge grants misdemeanor diversion, your case is paused. You can avoid the harsh consequences of a potential conviction by satisfying the court-imposed goals or tasks within the probationary period. The court considers the unique charges of each defendant, their criminal record, and life situation before determining the most appropriate diversion program terms and conditions.

Ideally, a diversion program should help the offender reform, get back on track and rejoin society without unreasonable threats. Therefore, apart from being eligible for alternative sentencing, it is also necessary for offenders to show that they are worthy of being given a second chance to seek treatment and rehabilitation. Note that a judge can deny alternative sentencing on the grounds that a defendant exhibits signs that they are less likely to benefit from misdemeanor diversion.

An attorney can prove to the court that you deserve a second chance by showcasing how you could benefit from misdemeanor diversion. The expert can table your educational and professional history or present written character references. For instance, if an offense stems from substance abuse, your attorney can show the court that you have been proactive in seeking self-help, and a little push can free you from addiction.

Sometimes, the prosecution can review a case and advise an offender to request for misdemeanor diversion. However, this is not an option that automatically comes up. Having a competent criminal defense attorney by your side is the surest way to ensure you understand your legal options and pursue alternatives likely to yield the best outcome. If you want to benefit from misdemeanor diversion, it is necessary to have an attorney help you file a request with the court. The expert will also represent you to prove to the judge that you are worthy of a second chance through the diversion program.

What Happens Once You Complete A Misdemeanor Diversion Program?

A misdemeanor conviction can have long-lasting repercussions. The most prominent include difficulties obtaining meaningful employment and limited educational opportunities. A conviction can also affect where you live and lock you out of enjoying housing within specific neighborhoods.

Completing a diversion program will have both immediate and long-term benefits. First, the court will dismiss your charges and seal your arrest record. It will be as though an arrest never occurred. Even though the record will still be available to the Department of Justice, you can legally tell employers and landlords that you have a clean criminal history and have never been arrested or convicted for the crime that resulted in the diversion program. Furthermore, it is illegal for employment, licensing, and benefits institutions to base their decisions on a sealed arrest record.

Misdemeanor diversion merely means that the court agrees to suspend formal criminal proceedings. A defendant will not fully enter the system if they complete the set conditions. The arrangement works for both the offender and the State. The State benefits from reduced court caseloads, a lower risk of recidivism, and reduced prison costs allied with probation and incarceration. On the other hand, the defendant benefits from maintaining a clean criminal record and a reduced risk of societal labeling and stigma.

Once a judge grants a diversion program, there are crucial requirements you must meet for you and the State to enjoy the win-win arrangement. These requirements include:

  • Satisfy all the court-ordered conditions — A misdemeanor diversion program will not come without a unique set of terms and conditions designed to treat, educate or rehabilitate an offender. These terms may include mandatory counseling, drug or alcohol treatment, probation, etc.
  • Pay restitution to the victim(s) — Some crimes like DUI causing injury can leave the victim(s) suffering economic and non-economic damages. While the court will require you to pay restitution to the victim(s), the failure to comply with this requirement because you are indigent cannot be grounds to terminate the program.
  • Comply with all court-ordered protective orders — If an incident also involved the court granting stay-away orders, violating the order can lead to the termination of a misdemeanor diversion program.

Working with a criminal attorney is imperative to maximize your chances of benefiting from misdemeanor diversion. The expert will also dispense legal guidance to ensure you do not face the risk of a program being terminated. Even though it is perfectly okay to represent yourself, a seasoned lawyer is better positioned to plead with law enforcement officials, prosecutors, and judges to increase the chances of misdemeanor diversion being granted.

Find a Los Angeles Criminal Defense Attorney Near Me

Assembly Bill 3234 significantly increases diversion opportunities for misdemeanor offenders. Under the new law, the judge has the discretion to grant pretrial diversion even if the prosecutor objects. If you are not sure whether you qualify for misdemeanor diversion, a skilled criminal defense attorney can help clarify your legal options. At the Los Angeles Criminal Attorney, we understand the devastating effects of a conviction and can help ensure that you have the best chance of benefiting from alternative sentencing. Call us today at 424-333-0943 to speak to a skilled attorney about your case. We offer the initial consultation at zero charges!