Date this article was drafted by Attorney Philip Hache on January 20, 2021
1. What is the Legislative Intent of PC 1001.95?
The intent of Legislature with PC 1001.95 is to promote a global increase in diverted cases in order to be proactive and mitigate both an individual’s entry and reentry into the criminal justice system, as well as to reduce taxpayer costs. The author of this bill understood that a criminal record can negatively affect someone’s ability to gain employment or find housing. Further, successful completion of diversion may be more effective in reducing recidivism rates (ie. reducing the chances of someone committing future crimes) as compared to prosecution and incarceration.
2. History of PC 1001.95
That statute was introduced through Legislature through the bill AB 3234 (which later became PC 1001.95 through 1001.97). After getting passed by the CA State Assembly and CA State Senate, it was enacted on September 30, 2020 and became effective January 1, 2021. The Legislature passed Assembly Bill 3234 to amend Penal Code sections 1001.95 through 1001.97 to allow misdemeanor judicial diversion.
Prior to PC 1001.95 as we know it today, there was another similar diversion statute found in P 1001.94 through 1001.98 that came into effect on January 1, 2015 and was repealed on January 1, 2018. That version of the diversion was for Los Angeles County only, though. In comparison, PC 1001.95 as we know it today is valid in all of California.
Additionally, the former version that was repealed in 2018 had many more limitations. For example, the former PC 1001.94 through PC 1001.98 (now repealed) excluded many more charges from eligibility, including DUI offenses, as compared to the current PC 1001.95 statute. The current PC 1001.95 statute does not list DUI offenses as excluded from eligibility.
3. How Does A Defendant Get Diversion Pursuant to PC 1001.95?
Under Penal Code section 1001.95, A Judge in the Superior Court in which a misdemeanor is being prosecuted may, at the Judge’s discretion and over the objection of a prosecuting attorney, offer diversion to a Defendant. For the Judge to consider diversion for a Defendant, the charge(s) must not be excluded from eligibility pursuant to PC 1001.95.
A. What does PC 1001.95 apply to?
PC 1001.95 diversion applies to all misdemeanors except those charges specifically excluded.
B. What charges are excluded as stated in PC 1001.95?
The statutes specifically excludes: (1) Any offense for which a person, if convicted, would be required to register pursuant to Section 290; (2) A violation of Section 273.5; (3) A violation of subdivision (e) of Section 243; or (4) A violation of Section 646.9.
C. Are DUI’s eligible for diversion per PC 1001.95?
This is a question that is in an immediate debate. At the time of this article is written, many Prosecutors and Judges feel that DUI’s are not eligible for Diversion even though not specifically excluded within the Statute. I am one of a small group of Attorneys across the State of California who are vigorously fighting against that position, and I am filing motions in Courts to support my position. Legislative Intent, Legislative History, Related Precedent Case law, and the Plain Language of the statute as currently written supports that DUI’s are eligible for diversion under PC 1001.95.
4. If PC 1001.95 diversion is granted, what are the terms and conditions imposed by the Court?
As stated in PC 1001.95, the terms and conditions of the diversionary program are flexible. The Court may continue Diversion for up to twenty-four (24) months and the terms may include:
(a) Complete all conditions ordered by the court.
(b) Make full restitution. However, a defendant’s inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(c) Comply with a court-ordered protective order, stay-away order, or order prohibiting firearm possession, if applicable.
Diversion under PC 1001.95 is a great tool for Defendant’s to use to avoid a conviction when possible. There are two battles that have to be overcome. 1. Proving to the Court that your charge(s) are eligible for diversion, and if eligible, 2. Convincing the Judge that your specific case should be approved for diversion.
I have been at the forefront and very successful in getting Diversion granted for my clients in the past under similar diversion statutes (ie. Military Diversion, Mental Health Diversion, former Judicial Misdemeanor Diversion (now repealed), etc). It often requires a detailed motion and exhibit package to file with the Court and Prosecutor in order to get that successful result.
Note that Statutes can be amended or repealed. This article was written on January 21, 2021. It is possible there has been a change of statute or case law that can affect how the Misdemeanor Judicial Diversion is handled by Courts. For up-to-date information, it is important to talk to an Attorney.
If you have a current/pending misdemeanor charge(s), call me at 818-336-1384 so we can discuss if Misdemeanor Judicial Diversion is a possibility for you.
Attorney At Law