What Is Misdemeanor Diversion Under California Penal Code Section 1001.95?

For many people charged with a misdemeanor in California, one of the most important questions is whether there is a way to avoid a criminal conviction. In some cases, the answer may be misdemeanor diversion under California Penal Code section 1001.95.

Misdemeanor diversion can allow an eligible defendant to complete court-ordered conditions and ultimately obtain a dismissal of the criminal charges. This can make diversion particularly important for first-time offenders, students, professionals, and others concerned about the long-term consequences of a criminal conviction.

If you have been charged with a misdemeanor in Northern California, understanding how Penal Code section 1001.95 works can help you determine whether diversion should be pursued.

What Is Misdemeanor Diversion in California?

Penal Code section 1001.95 gives California courts authority, subject to statutory limitations, to offer diversion to defendants charged with qualifying misdemeanor offenses.

Diversion essentially pauses the normal criminal prosecution while the defendant completes conditions imposed by the court. The period of diversion may last for up to 24 months.

The conditions depend on the particular case. They may include requirements such as:

• Community service;

• Counseling;

• Educational programs;

• Substance-abuse treatment;

• Anger-management classes;

• Restitution to an alleged victim;

• Compliance with protective orders; or

• Remaining law-abiding during the diversionary period.

If the defendant successfully completes diversion, the court can dismiss the criminal case.

Do You Have to Plead Guilty to Receive Diversion?

One of the major advantages of diversion under Penal Code section 1001.95 is that it can occur before a defendant is convicted.

Rather than pleading guilty and then receiving probation, an eligible defendant may be placed into diversion while the prosecution is suspended. If diversion is successfully completed, the case can be dismissed without the defendant receiving a conviction on the diverted charge.

This distinction can be extremely important for someone concerned about employment, education, licensing, immigration, or other consequences associated with a criminal conviction.

Can the Prosecutor Stop a Defendant From Receiving Diversion?

Penal Code section 1001.95 provides for judicial diversion. This means the decision is ultimately made by the court rather than being entirely dependent upon the prosecutor offering a diversion program.

The prosecutor can oppose diversion and argue that the circumstances of a particular case make diversion inappropriate. However, prosecutorial opposition does not necessarily end the inquiry.

A criminal defense attorney can present evidence and argument explaining why the defendant is an appropriate candidate for diversion.

What Does a Judge Consider When Deciding Whether to Grant Diversion?

There is no single formula that determines whether a judge will grant misdemeanor diversion. The defense should therefore present the court with reasons why diversion serves the interests of justice in the particular case.

Depending on the circumstances, persuasive considerations may include:

• The defendant's lack of criminal history;

• The defendant's age and background;

• Employment or educational history;

• Family responsibilities;

• Military service;

• The circumstances surrounding the alleged offense;

• Whether anyone suffered an injury;

• Restitution or efforts to repair harm;

• Participation in counseling or treatment;

• Voluntary completion of classes;

• Community involvement;

• Evidence that the incident was isolated;

• The defendant's conduct since the alleged offense; and

• The disproportionate consequences a conviction could create.

A strong diversion request should generally do more than simply tell the court that the defendant is eligible. It should explain why diversion is appropriate for this particular defendant and this particular case.

Which Misdemeanors Are Not Eligible for Diversion?

Penal Code section 1001.95 does not apply to every misdemeanor.

California law excludes certain offenses from judicial misdemeanor diversion. These exclusions include specified offenses involving domestic violence and stalking, as well as certain offenses requiring sex-offender registration.

Because eligibility depends on the precise charge and current California law, a defendant should have an attorney evaluate whether the charged offense qualifies before relying on diversion as a potential outcome.

Other diversion statutes may also be available depending on the circumstances of the case.

Is Diversion Only for First-Time Offenders?

No. Penal Code section 1001.95 is not limited exclusively to people who have never been arrested or convicted before.

However, having little or no criminal history can be a powerful argument in favor of diversion.

For a person facing his or her first criminal case, the defense can argue that the alleged conduct was an isolated event and that a criminal conviction is unnecessary to prevent future misconduct.

A defendant with prior convictions may still have arguments for diversion depending on the nature of the prior record, how old it is, the circumstances of the current offense, and the defendant's conduct since the earlier case.

What Happens During the Diversion Period?

When diversion is granted, the criminal prosecution is generally suspended while the defendant completes the court's requirements.

The court may schedule progress reviews or require proof that certain conditions have been completed.

For example, a defendant might be required to complete community service, attend counseling, pay restitution, or participate in an educational program before returning to court.

The exact requirements vary considerably depending on the allegations and the judge handling the case.

What Happens After Successful Completion of Diversion?

The principal benefit of misdemeanor diversion is what happens at the end.

When a defendant satisfactorily completes the required terms, the court dismisses the criminal action under the diversion statutes.

For many defendants, this is substantially better than accepting a misdemeanor conviction followed by probation.

There are, however, important statutory rules concerning how the arrest and diversion may be treated afterward, as well as exceptions to the general rule. A defendant with concerns about professional licensing, immigration, firearm rights, employment, or other collateral consequences should discuss those issues specifically with an attorney.

What Happens if You Do Not Complete Diversion?

Diversion is an opportunity to obtain a dismissal, but the defendant must comply with the court's requirements.

If the defendant does not perform satisfactorily during diversion, the court may end diversion and resume the criminal proceedings.

The defendant would then once again face prosecution on the original charge.

For this reason, someone who receives diversion should take every condition seriously and maintain records showing completion of classes, community service, restitution, or other requirements.

Can an Attorney Ask for a Shorter Diversion Period?

Penal Code section 1001.95 permits diversion for a period not exceeding 24 months, but that does not mean every case requires two years of diversion.

The defense may have reasons to request a shorter period based on the defendant's circumstances and the conditions necessary to address the alleged conduct.

A shorter diversion period may be particularly important for defendants facing time-sensitive consequences involving employment, education, professional licensing, travel, or immigration.

Whether a court will agree depends on the circumstances of the individual case.

Why Proactive Rehabilitation Can Help a Diversion Request

A defendant does not always have to wait for the court to order classes or counseling before taking positive steps.

Depending on the allegations, voluntarily completing an appropriate program before the diversion hearing can demonstrate that the defendant is taking the matter seriously.

For example, the defense might present evidence of:

• Substance-abuse counseling;

• Anger-management classes;

• Theft-prevention courses;

• Community service;

• Restitution;

• Mental-health counseling when appropriate; or

• Other rehabilitative efforts related to the alleged conduct.

The appropriate approach depends on the case. Defendants should consult with their attorney before enrolling in a program or making statements about the allegations.

Why Misdemeanor Diversion Can Be Especially Important for Students and Professionals

Even a misdemeanor conviction can have consequences beyond the sentence imposed by the criminal court.

Students may be concerned about university disciplinary proceedings, graduate-school applications, internships, or future employment. Professionals may be concerned about background checks or licensing agencies.

For these defendants, avoiding a conviction may be an especially important objective.

Diversion can provide an opportunity to demonstrate rehabilitation and accountability without imposing a criminal conviction when the court determines that prosecution is unnecessary.

How a Criminal Defense Attorney Can Help With a Diversion Request

Obtaining diversion may require more than simply asking the judge for it.

An experienced criminal defense attorney can prepare a persuasive presentation explaining why diversion is appropriate. Depending on the case, this may include gathering:

• Character letters;

• Employment records;

• Academic records;

• Certificates from completed programs;

• Proof of counseling;

• Community-service documentation;

• Restitution records; and

• Other evidence demonstrating rehabilitation and good character.

The attorney can also address weaknesses in the prosecution's case and explain why the circumstances of the alleged offense do not warrant a criminal conviction.

Misdemeanor Diversion in Northern California

The way misdemeanor diversion requests are handled can vary depending on the court, judge, prosecutor, charge, and circumstances of the defendant.

Someone facing misdemeanor charges in Chico, Butte County, Glenn County, Tehama County, Yuba County, Sutter County, or elsewhere in Northern California should speak with a criminal defense attorney about whether Penal Code section 1001.95 or another diversion statute may apply.

For an eligible defendant, successfully pursuing misdemeanor diversion can mean the difference between ending a case with a criminal conviction and ending it with a dismissal.

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