DIVERSION OF CRIMINAL CASES IN CALIFORNIA

There was a time in California when the phrase diversion applied only to the process of earning the dismissal of a drug case by attending a program and staying free of law enforcement contact for a while. In California drug diversion became law in 1972 as part of the Drug Abuse Act signed by then Governor Ronald Reagan. The program sought to:

a. To decriminalize specific drug statutes for first time drug offenders.
b. To reduce the court workload.
c. To provide for the rehabilitation of first time offenders.

Diversion then and now is an alternative way to resolve a pending criminal case by postponing a prosecution pending the accused's completion of certain requirements, typically some sort of rehabilitative program along with a period of crime free behavior.

Diversion differs from Deferred Entry of Judgment (DEJ) in that DEJ requires the person to enter a plea of guilty or no contest and thereafter earn a dismissal of the case by complying with various conditions. Current diversion statutes don't require a plea of guilty to participate.

The original 1972 version of drug diversion was known as P.C. (Penal Code) 1000. Since 1972 diversion of criminal offenses has been expanded and at a greater pace in recent years. Diversion statutes have grown to now include:

1.) Misdemeanor diversion (P.C. 1001.50 through P.C. 1001.55);
2.) Cognitive disability diversion (P.C. 1001.20 through P.C. 1001.34);
3.) Mental health diversion (P.C. 1001.35 through 1001.36);
4.) Bad check diversion (P.C. 1001.60 through P.C. 1001.67):
5.) Parental diversion (P.C. 1001.70 through P.C. 1001.75);
6.) Military/Veteran's diversion (P.C. 1001.80);
7.) Theft diversion (P.C. 1001.81);
8.) Primary caregiver diversion (P.C. 1001.83);
9.) Judicial (Misdemeanor) diversion (P.C. 1001.95 through 1001.97).

What follows is a brief description by Long Beach criminal law specialist, Attorney Matthew Kaestner, of the various diversion programs available to persons who find themselves charged with a criminal case in California.

MISDEMEANOR DIVERSION

Many misdemeanor offenses can be diverted under multiple statutes, but most misdemeanors can be diverted under either standard diversion requiring both the prosecutor's and judge's approval (P.C. 1001.50-P.C. 1001.55); or with just the judge's approval under judicial diversion (P.C. 1001.95-1001.97.

Judicial diversion can be granted to a person charged with a misdemeanor even over the objection of the prosecutor. A judge may divert a person charged with any misdemeanor except for an offense that requires sex registration, a crime of domestic violence, or driving under the influence. Judicial diversion allows a person to earn a dismissal of the charge if they complete all conditions ordered by the court, make full restitution if able, and comply with any protective order.

Standard misdemeanor diversion, which requires the agreement of the prosecutor, has stricter limitations and applies to fewer offenses. Limitations include having no prior felony convictions, no uncompleted grants of probation, and no diversions in the prior 5 years. Also misdemeanor diversion cannot be granted in situations where the offense requires mandatory jail time or sex registration, involves a reduced felony, involves force or violence (except P.C. secs. 241 or 243), is a driving offense or is an offense where probation is prohibited.

COGNITIVE DISABILITY DIVERSION

Penal Code sections 1001.20 through 1001.34 allow for diversion of persons with a developmental disability as defined in Welfare and Institutions Code section 4512 and for which a regional center finds eligibility for services. If a person is deemed eligible and suitable for treatment and habilitation services a program of up to two years can be designed and implemented by either the regional center or both the regional center and the probation department.

Many serious crimes can be diverted for persons with cognitive disabilities except for: murder and voluntary manslaughter, most sex crimes (except indecent exposure), and possession of weapons of mass destruction.

MENTAL HEALTH DIVERSION

Under Penal Code sections 1001.35 through 1001.37, a person is eligible for mental health diversion if the charged person is diagnosed with many mental health disorders (excluding pedophilia, or anti-social and boderline personality disorders). The mental disorder must have been a significant factor in the offense. Like cognitive disability diversion, all but the most serious offenses can be diverted.

To qualify for mental health diversion, a court must find the charged person suitable meaning that:

1.) The identified disorder would respond to treatment;
2.) The defendant consents to diversion and waives speedy trial rights;
3.) The defendant agrees to comply with treatment; and
4.) The defendant will not pose an unreasonable risk of danger to public safety.

A person successfully completing mental health diversion, like with other sorts of diversion, can earn a complete dismissal of criminal charges. The mental health diversion program can last up to one year for misdemeanors and up to two years for felony offenses.

MILITARY DIVERSION

Many superior courts in California have designated Veterans Courts that deal with the unique mental health issues common to all veterans charged with felony and misdemeanor offenses. However, Penal Code section 1001.80, Military diversion, allows persons who are or were members of the United States Military charged with misdemeanors to earn a pre-plea dismissal of their cases by participating in a federal or community based treatment program.

The current or former member of the military must suffer from some sort of sexual trauma, traumatic brain injury, PTSD, stress disorder, substance abuse or mental health problems as a result of military service.

Treatment is often conducted in conjunction with V.A. programs or by a county mental health agency. Successful completion of military diversion results in a dismissal of charges.

BAD CHECK DIVERSION

As the name implies, bad check diversion statutes (P.C. 1001.60 through P.C. 1001.67) allow a county to set up a program where the District Attorney can enter into agreements to not prosecute persons who write bad checks if they take a class, make full restitution and pay a diversion fee. Los Angles County does not currently have a bad check diversion program in place.

PARENTAL DIVERSION

Parental diversion, also know as child abandonment/neglect diversion (P.C. 1001.70 through P.C. 1001.75) allows a person charged with a violation of Penal Code section 272 (abandonment, neglect, or contributing to the delinquency of minor) to enter into a diversion program of education, treatment and rehabilitation. To qualify, the defendant can't have been diverted before or have failed to complete a prior grant of probation or parole.

THEFT DIVERSION

Penal Code section 1001.81,authorizes a county, similar to the bad check diversion statute, to establish a program to divert persons charged with theft offenses. Los Angeles does not have a specific theft diversion program, but misdemeanor theft charges can be diverted under the misdemeanor and judicial diversion statutes described above.

PRIMARY CAREGIVER DIVERSION

Penal Code section 1001.83 allows the presiding judge of a county in consultation with juvenile court and criminal court judges, prosecutors and the public defender to agree in writing to establish and conduct a diversion program for primary caregivers. Under the statute, persons with all but serious or violent felonies can be diverted for 6 to 24 months during which a wide range of treatment and rehabilitation options are available. Los Angeles County has not yet set up such a program.

Long Beach criminal lawyer, Matthew Kaestner, has been fighting criminal cases for over 35 years. Attorney Kaestner has been board certified as a specialist in criminal law since 1999. While not all criminal offenses can be diverted, many can. Therefore, it is critical to seek expert advice when you or a loved one is charged with or accused of a crime. Long Beach criminal lawyer Matthew Kaestner is available to personally take your call and share his expertise. He can be reached directly at 562-437-0200.