Two new laws took effect in California on January 1, 2021. Together, they are going to drastically change the way that most misdemeanors are prosecuted.
1-Year Cap on Misdemeanor Probation
The first of these new laws, AB-1950, amends section 1203 of California Penal Code to cap the length of probation for most misdemeanors at 1 year.
Previously, the standard term of probation for most misdemeanors was 3 years. This is "summary" probation (also called "informal" probation, or "court" probation), so the defendant does not have a probation officer. Instead, a judge simply orders a defendant to remain law-abiding for the 3 year period following a misdemeanor conviction. If the defendant is arrested for any new crime during that time, he or she must answer for the probation violation in addition to any penalties for the new offense.
Proponents of the new law argued that long terms of probation resulted in over-incarceration and made it difficult for people to find work after a conviction for some petty offense. They also argued that long probationary sentences disproportionately affected minority communities and actually contributed to high recidivism rates.
Capping the length of probation at one year will also make more people eligible to expunge their records sooner after convictions. In California, an expungement has the effect of dismissing a conviction after the fact. To apply, a defendant must show that he successfully complied with all terms of probation and that he is not currently on probation. Previously, that meant the applicant had to wait 3 years from the date of his conviction before he was eligible for relief. Under the new rules, defendants will only have to wait 1 year before they can petition to have a case dismissed.
Judges Have New Powers to Grant Diversion
Starting January 1, 2021, PC 1001.95 grants judges in California new powers to offer "diversion" to defendants in misdemeanor cases, even over the prosecutor's objection.
"Diversion" works like this: rather than running a defendant through the meat grinder of the criminal justice system, the court will order him to complete various terms before he is convicted (in contrast to probation, which runs after the defendant is convicted). The terms may include things like AA meetings or anger management counseling, etc. If a defendant successfully completes the terms and remains law-abiding for some period of time, all charges are dismissed and the arrest is deemed to have never occurred.
Traditionally, the decision to grant diversion was entirely up to the prosecutor. A judge could refuse to allow it, but he or she could not offer diversion over the DA's objection. Judges weren't typically involved in dictating the terms of diversion, either. This new law gives judges sweeping new authority to craft their own diversion deals and to tailor programs for individual defendants.
PC 1001.95 allows for diversionary periods up to 2 years long. During this time, the defendant must remain law-abiding in order to earn an eventual dismissal of charges. If the defendant fails to comply with diversion or is arrested on new charges, diversion will be terminated and the case will be sent back to the traditional justice system.
All Together Now
Think about what both of these new laws mean, taken together. If a defendant decides to participate in diversion, a judge could have broad authority to set and enforce various terms for up to 2 years. The "light at the end of the tunnel" is an eventual dismissal.
But if the defendant says, "forget that", and simply decides to go through the old-fashion justice system, he will be off probation and eligible for an expungement after only 1 year. The effect is essentially the same, but a defendant's period of supervision is only half as long.
There are some other, technical distinctions, and there may be some situations where diversion is preferable over probation. I will have to analyze each matter on a case-by-case basis going forward, though. Diversion is not as generous as it seems, and it might not be the best fit for every client.
If you or a loved one has questions about probation, diversion, or any other criminal matter in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.