New Law in California Allows a Judge to Grant Diversion for Most Misdemeanor Cases Under Assembly Bill 3234
California's legal landscape saw a significant expansion with the enactment of Assembly Bill 3234 on January 1, 2021. This bill greatly broadened the scope of diversion, making it applicable to most misdemeanor cases.
AB 3234 extends the opportunity for diversion to almost all misdemeanor cases, including DUI, assault, drug crimes, criminal threats, vehicular manslaughter, elder abuse, child abuse, carrying a concealed firearm, and others, subject to certain conditions.
After a defendant has completed diversion as set by the judge, the case will be dismissed, and the offense will be deemed never to have occurred.
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.
Misdemeanor cases dismissed and erased from the 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 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 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. This discretion, while not absolute, ensures a fair and individualized approach to each case, with 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 time, the defendant is required to follow the terms and conditions set by the judge.
During this period of continuance, the is required to follow the terms and conditions set by the judge.
What are the terms and conditions of the diversion program?
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 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, 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 sexual-related charges.
How to Present a Petition to a Trial Court
As discussed above, the California trial court has the sole discretion to grant AB 3234 misdemeanor diversion.
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 the defendant,
- background and character,
- other related factual and legal arguments that will support the defendant's request for diversion.
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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