New Law in California Allows a Judge to Grant Diversion for Most Misdemeanor Cases Under Assembly Bill 3234
The state of California has significantly expanded an opportunity for diversion in most misdemeanor cases after Assembly Bill 3234 took effect on January 1, 2021.
AB 3234 allows a defendant diversion for almost all misdemeanor cases, such as DUI, assault, drug crimes, criminal threats, vehicular manslaughter, elder abuse, child abuse, carrying a concealed firearm, and others.
After a defendant has completed diversion as set by the judge, the case will be dismissed and the offense deemed to never have occurred.
Prior laws did offer some limited opportunities for diversion for certain type cases, like those dealing with a 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 it's appropriate.
Misdemeanor cases dismissed and erased from record
In a nutshell, California Assembly Bill 3234 allows:
- defendants to have their misdemeanor cases dismissed, and
- even erased from their record once they complete the diversion program successfully.
This type of diversion provides more benefits over other similar programs due to the facts 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, a defendant is not eligible for diversion under AB 3234 for many common misdemeanor crimes, such as domestic battery and sexual 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.
AB 3234 Allows Judge's Discretion to Grant Diversion
Under AB 3234 a judge has the discretion to grant diversion in most misdemeanors even when a prosecutor may object, but there some exceptions listed below.
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 period of a continuance, the is required to follow the terms and conditions set by the judge.
What the terms and conditions of the diversion program?
The criminal court judge will the 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 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 they will be required to follow the terms of any protective orders that were issued.
If a defendant is financially unable to pay restitution to the victim, it will not be considered sufficient grounds to find they are violation of the terms and conditions of diversion.
Benefits of AB 3234 Misdemeanor Diversion
As stated above, this new misdemeanor diversion can provide significant benefits to a defendant, for instance:
- 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.
Further, for a defendant who fails the successfully complete the misdemeanor diversion, the lack of an advanced guilty plea preserves their right to litigate their case in a jury trial.
California Crimes Not Eligible for Diversion
Under the newly enacted AB 3234, there are some misdemeanor crimes that 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 are related to domestic violence and sexual related charges.
How to Present a Petition to Trial Court
As discussed above, the granting of AB 3234 misdemeanor diversion is at the sole discretion of the California trial court.
This means it is crucial for a defendant's lawyer to present a complete and effective petition showing all mitigating factors, such as positive information about:
- history of defendant,
- background and character,
- other related factual and legal arguments that will support defendant's request for diversion.
It should be highlighted that the new statute also gives the judge broad discretion to not offer misdemeanor diversion to a defendant.
In other words, the discretion works both ways and there is not 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 present to 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.