California's legal landscape has significantly expanded with the enactment of AB 3234 on January 1, 2021. This new law allows a judge to grant diversion for most misdemeanor cases, greatly broadening the scope of diversion and providing defendants with more legal options.
Under AB 3234, the opportunity for diversion has been extended to encompass almost all misdemeanor cases. This inclusive approach covers a wide range of offenses, including DUI, assault, drug crimes, criminal threats, vehicular manslaughter, elder abuse, child abuse, carrying a concealed firearm, and others, subject to specific conditions.
Upon completion of the diversion program as set by the judge, the defendant's case will be dismissed, and the offense will be deemed never to have occurred. This process, outlined under AB 3234, offers a clear path to resolution for misdemeanor cases.
Prior laws did offer some limited opportunities for diversion for certain types of cases, like those dealing with drug addiction or mental health, but many charges were not eligible.
Furthermore, other defendants were not eligible for diversion if they had prior arrests or convictions. Normally, the relevant prosecuting agency is responsible for determining eligibility for diversion, and the judge will not even allow it unless there is an agreement that it is appropriate.
The prosecutor's role in this process is to review the case, consider the defendant's criminal history, and make a recommendation to the judge regarding the defendant's eligibility for diversion.
Misdemeanor Cases Dismissed and Erased
In summary, California Assembly Bill 3234 offers a ray of hope to defendants and their families. It allows defendants to have their misdemeanor cases dismissed and even erased from their records once they complete the diversion program.
This type of diversion provides more benefits than other similar programs because a defendant is not required to plead guilty in advance. This includes those charged with misdemeanor drunk driving (DUI) under Vehicle Code 23152 VC.
It should be noted, however, that a defendant is not eligible for diversion under AB 3234 for many common misdemeanor crimes, such as domestic battery and sexually related crimes that mandate Penal Code 290 PC sex offender registration.
For more information about Assembly Bill 3234, our Los Angeles criminal defense lawyers are providing an overview below.
Judges' Discretion to Grant Diversion
Under AB 3234, a judge has the discretion to grant diversion in most misdemeanors, even when a prosecutor may object. This discretion, while not absolute, ensures a fair and individualized approach to each case, providing reassurance to defendants about the fairness of the legal process.
Under this statute, a judge could offer a defendant diversion, and if accepted, they can continue the case for up to two years. During this time, the defendant is required to follow the terms and conditions set by the judge.
During this period of continuance, the defendant is required to follow the terms and conditions set by the judge.
Terms and Conditions
The criminal court judge will determine terms and conditions, which will normally include programs that are relevant to the circumstances and the criminal record of the defendant, such as:
- Drug or alcohol treatment program,
- Anger management classes,
- Community service,
- A combination of other programs specifically designed for the defendant.
It should be noted, however, that in all misdemeanor cases, a defendant will be required to pay full victim restitution for any losses and follow the terms of any protective orders that were issued.
Suppose a defendant is financially unable to pay restitution to the victim. In that case, this will not be considered sufficient grounds to find that they are violating the terms and conditions of diversion.
Benefits of AB 3234 Diversion
As stated above, this new misdemeanor diversion can provide significant benefits to a defendant. Not only will the case be completely dismissed, which means they will not have a record of conviction, but the underlying arrest will be deemed never to have occurred, offering hope for a positive outcome.
Further, a defendant who fails to complete the misdemeanor diversion does not receive an advanced guilty plea, which preserves their right to litigate their case in a jury trial. However, it's important to note that failure to complete the program may result in the case being reinstated, and the defendant may face the original charges and potential conviction.
Crimes Not Eligible for Diversion
Under the newly enacted AB 3234, some misdemeanor crimes are not eligible for diversion, including:
- Penal Code 273.5 PC – corporal injury on spouse,
- Penal Code 243(e)(1) PC – domestic battery,
- Penal Code 646.9 PC – stalking;
- Any misdemeanor sex crime requiring a defendant to Penal Code 290 mandatory sex offender registration.
The common theme for the crimes ineligible for diversion is related to domestic violence and sexually related charges.
How to Petition a Trial Court
As discussed above, the California trial court has the sole discretion to grant AB 3234 misdemeanor diversion.
This means a defendant's lawyer must present a complete and effective petition showing all mitigating factors, such as positive information about the defendant's history, background, and character, and other related factual and legal arguments that will support the defendant's request for diversion.
The petition should be filed with the trial court, and a hearing will be scheduled where the judge will consider the petition and make a decision. The judge will consider the defendant's criminal history, the nature of the offense, and the defendant's personal circumstances when making this decision.
It should be highlighted that the new statute also gives the judge broad discretion not to offer misdemeanor diversion to a defendant.
In other words, discretion works both ways, and there is no legal maneuver to compel a judge to allow diversion. This means persuading a judge with facts is essential to increasing the chances of success.
If you or a family member has been charged with a misdemeanor offense qualifying for diversion under AB 3234, contact our team of highly experienced criminal defense lawyers. We will work to present the most effective petition to the court related to your circumstances.
Cron, Israels & Stark is a successful criminal defense law firm representing people charged with a California crime from our two office locations in Los Angeles County. Contact our firm for a free case consultation at (424) 372-3112.
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