Metropolitan Courthouse
Holly L. Hancock-Goode
Judge
Southwestern University School of Law
The object of this article and self-study test is to
discuss the fundamentals of judicial diversion (Pen. Code, § 1001.95) (JD) in
misdemeanor cases. Topics covered include the history and basics of JD; the
diversion restitution fee and victim restitution requirements; and the
successful/unsuccessful completion of JD.
History and basics of JD
JD--allowing a court to postpone criminal prosecution of
misdemeanors and dismiss the case at the end of the diversion period--was
originally enacted in 2015 as a pilot program in Los Angeles County which
sunset by design in 2018. (Pen. Code, former § 1001.94 et seq.) Under the
former law, a court could grant diversion only if the defendant had no other
misdemeanor convictions for the previous 10 years, and there were many
additional enumerated exclusions. (Pen. Code, former § 1001.98.)
Enacted in 2021, JD expanded judicial discretion in
misdemeanor cases. Under JD, diversion is granted pre-plea; the diversion
period cannot exceed 24 months; it can be ordered even if the prosecutor
objects; the court must impose a restitution fee and can order that victim
restitution be paid; and the court must dismiss the case upon successful
completion. (Pen. Code, §§ 1001.95-1001.97.)
The court is given the discretion whether to grant or deny
diversion. "A judge in the superior court in which a misdemeanor is being
prosecuted may, [grant diversion]." Pen. Code, § 1001.95(a). Discretion is very
broad, as it was held in another diversion context (military diversion, Pen.
Code, § 1001.80), that a court can be reversed for abusing its discretion when
it "'exceeds the bounds of reason, all of the
circumstances before it being considered,'" or when "its decision is 'so
irrational or arbitrary that no reasonable person could agree with it.'" (Wade
v. Superior Court, 33 Cal.App.5th 694 (2019).) The discretion extends to
deciding the "terms, conditions, or programs," which the court determines are
"appropriate based on the defendant's specific situation." (Pen. Code, §
1001.95(b).)
JD is a pre-plea diversion statute, so the timing of when
it is requested is important. In People v. Braden, 14 Cal.5th 791
(2023), which interpreted the provisions of the mental health diversion statute
(Pen. Code, § 1001.36), the court held that a restriction to granting diversion
pre-plea meant diversion had to be granted "before attachment of jeopardy at
trial or the entry of a guilty or no contest plea, whichever occurs first."
This appears to be a good working definition of pre-plea for JD as well.
Under Penal Code section 1001.95(e), the following crimes
are excluded from JD:
• Any crime, if convicted, which requires sex offender
registration under Penal Code section 290.
• Penal Code section 646.9 - stalking.
• Any offense involving domestic violence, as defined by
Family Code section 6211 or Penal Code section 13700(b).
Driving under the influence offenses (Veh. Code, §§
23152/23153/23103 per 23103.5) also cannot be diverted. Vehicle Code section
23640(a), provides, "In any case in which a person is charged with a violation
of Section 23152 or 23153, prior to acquittal or conviction, the court shall
neither suspend nor stay the proceedings for the purpose of allowing the
accused person to attend or participate, nor shall the court consider dismissal
of or entertain a motion to dismiss the proceedings because the accused person
attends or participates during that suspension, in any one or more education,
training, or treatment programs, including, but not limited to, a driver
improvement program, a treatment program for persons who are habitual users of
alcohol or other alcoholism program, a program designed to offer alcohol
services to problem drinkers, an alcohol or drug education program, or a
treatment program for persons who are habitual users of drugs or other
drug-related program." Several appellate opinions reasoned that this statute
prohibits JD for DUI offenses. (See People v. Superior Court (Ortiz),
81 Cal.App.5th 851 (2022) [collecting cases].)
As to the exclusion of domestic violence offenses, Penal
Code section 1001.95(e)(2) states, diversion is barred for "[a]ny offense involving domestic violence, as defined in
Section 6211 of the Family Code or subdivision (b) of Section 13700 of [the
Penal Code]."
To be excluded, under Family Code section 6211, the defendant must stand in one
of the following relationships with a victim of the charged crime:
• Current or former spouse.
• Current or former cohabitant.
• Current or former dating relationship.
• Co-parent.
• Child.
• Any other person related by consanguinity or affinity
within the 2nd degree (grandparent, sibling, grandchild, parent, child, spouse,
parent-in-law and daughter/son-in-law).
In addition, the defendant must engage in the following
conduct to be excluded (Fam. Code, § 6203(a)):
• Infliction of bodily injury.
• Commission of a sexual assault.
• Placing in reasonable apprehension of serious bodily
injury.
• Conduct consisting of "molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, credibly impersonating
as described in Section 528.5 of the Penal Code, falsely personating as
described in Section 529 of the Penal Code, harassing, telephoning, including,
but not limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a specified distance
of, or disturbing the peace of the other party." (Fam. Code, § 6320, subd. (a);
see Fam. Code, § 6203, subd. (a)(4) ["abuse" for purposes of Fam. Code, § 6211
includes "[t]o engage in any behavior that has been or
could be enjoined pursuant to [Fam. Code, §] 6320"].)
Restitution fee and victim restitution
A diversion restitution fee (Pen. Code, § 1001.90) must be
imposed for all types of diversion except Regional Center Diversion (Pen. Code,
§ 1001.20). The amount is set in the court's discretion and shall be
commensurate with the seriousness of the offense but shall not be less than
$100 and not more than $1000. (Pen. Code, § 1001.90(b).)
The fee shall be ordered regardless of the defendant's
present ability to pay, but ability to pay can be considered in determining the
amount ordered. (Pen. Code, § 1001.90(c).) If the court states on the record
that there exist "extraordinary reasons," the fee does not have to be ordered.
(Ibid.)
In setting the amount of the fee in excess of $100, the
court should consider: the defendant's ability to pay; the seriousness and
circumstances of the crime; any economic gain derived by the defendant as a
result of the crime; and the extent to which any other person suffered any
losses as a result of the crime, including psychological harm caused by the
crime, and the defendant's future earning capacity. (Pen. Code, § 1001.90(d).)
The defendant bears burden of demonstrating lack of ability to pay, express
findings are not necessary, and a separate hearing is also not necessary. (Ibid.)
Victim restitution can be ordered to be paid as a
condition of JD in appropriate cases, and the defendant must pay any victim
restitution to have the case dismissed. (See Pen. Code, § 1001.96(b).)
However, inability to pay restitution due to indigence cannot be grounds for
denial of diversion or a finding that the defendant has failed to comply with
the terms of diversion. (Ibid.)
Successful/Unsuccessful completion of JD
The benefits of successfully completing JD are (Pen. Code,
§ 1001.97(a)):
• The arrest is deemed to have never occurred.
• If the defendant is asked if they have a prior criminal
record, they can say they have never been arrested.
• The arrest cannot be used to deny employment, benefit,
license or certificate.
The defendant must be advised that, "regardless of their
successful completion of diversion, the arrest upon which the diversion was
based may be disclosed by the Department of Justice in response to a peace
officer application request and that, notwithstanding subdivision (a), this
section does not relieve them of the obligation to disclose the arrest in
response to a direct question contained in a questionnaire or application for a
position as a peace officer, as defined in [Penal Code s]ection
830." (Pen. Code, § 1001.97(b).)
Penal Code section 1001.95(d) provides, "If it appears to
the court that the defendant is not complying with the terms and conditions of
diversion, after notice to the defendant, the court shall hold a hearing to
determine whether the criminal proceedings should be reinstituted. [If the
court finds at the hearing that the defendant is not complying with the
conditions,] the court may end the diversion and order resumption of the
criminal proceedings."
When it is alleged a defendant
failed to complete diversion, probable cause must be shown that there has been
a violation in order for the court to order an evidentiary hearing to decide if
diversion should be terminated. (People v. Shaginyan,
109 Cal.App.5th Supp. 1 (2025).) "A prosecutor must prove the grounds for
revocation of probation at an evidentiary hearing by a preponderance of the
evidence." (Ibid.)