A “diversion” program is an opportunity that allows defendants in certain misdemeanor cases and under certain circumstances to complete tasks to avoid being prosecuted resulting in a dismissal. For years many County District Attorney’s Offices have agreed to “divert” defendants if they completed a relevant social program in the category of their crime and stay crime free for an agreed period of time.
For instance, if a defendant has a drug possession charge, a DA may allow them to complete and show proof of attendance to a various number of narcotics anonymous classes that would result in a dismissal. In certain minor property offenses if the defendant agrees to pay back the victim for the damage or harm, then the DA may allow a civil compromise and dismiss the case once the victim is compensated for their loss. Up to now, these opportunities were only available if the District Attorney exercised their discretion on a case-by-case basis.
The State of California has recently passed legislation that allows lawyers a greater opportunity to steer their client’s case to a judicial diversion program. California Penal Code Section 1001.95 allows a judge in the superior court in a misdemeanor case and at the judge’s discretion, even over the objection of a prosecuting attorney, to offer diversion to a defendant with certain rules.
First, a judge may divert a 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.
Second, 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.
If it appears to the court that the defendant is not complying with the terms and conditions of diversion, the court shall hold a noticed 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.
Certain cases are prohibited from diversion:
(1) Any offense for which a person, if convicted, would be required to register as a sex offender 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 stalking pursuant to Section 646.9.
As one can imagine, the District Attorney may oppose any diversion program, but it is up to the Judge to make the final decision as to whether such a program should be offered. Likewise, it is up to your attorney to aggressively advocate your case with the hope that such a program will make a difference and avoid any incarceration or the need to go to trial. Judicial diversion is never a guarantee and must be well thought out in advance and argued by your lawyer so that you have the best opportunity for success.