Thursday, July 28, 2022

Seal Arrest Records in California

Background checks are commonly used for pre-employment screening, firearm sales, international travel and school volunteers, among other things.  Incomplete or inaccurate arrest records aren't only embarrassing, they can lead to the loss of important opportunities.  Luckily, California offers a few different options to correct, amend, seal or destroy some of those records.  

I've previously written about expungements and 17(b) reductions here.  If you were convicted of a crime in California, there are some options available to reduce or dismiss charges after you successfully complete a term of probation.  Some of those options can hide some records from some people.  It's complicated, but read those posts if you're interested in cleaning up old criminal convictions. 

Today, I want to talk about something different.  This post is specifically about ARREST records, how inaccurate or incomplete records can haunt you for a long time, and how to reduce or eliminate some of those consequences. 

LiveScan Background Checks

When someone submits to a LiveScan background check in California, his or her fingerprints are run though a database at the California Department of Justice in Sacramento.  Those fingerprints are analyzed by computers and compared to the prints of everyone who has ever been arrested and / or convicted for any crime in the state.

Once the analysis is complete, the Dept of Justice produces a report of the subject's complete criminal history in a document called a "RAPS Sheet".  "RAPS" stands for "Record of Arrests and Prosecutions".  As it's name implies, the RAPS sheet contains some very basic data about the subject's history of arrests, charges filed, dates of convictions, level of offenses (felonies or misdemeanors), and sentences imposed. 

Errors

Sometimes, a RAPS sheet contains an error.  Maybe a conviction shows up as a felony, but you clearly remember that it was reduced to a misdemeanor.  

Errors are easy to fix, and they don't usually require a lawyer.  Simply fill out the "Claim of Error or Omission" form that is included with every criminal history report.  Provide as much information as you have and send it back to the Department of Justice at the address listed on the form.  

If it's possible, you should also reach out to the attorney who represented you in the case, even if that's the Public Defender.  Ask if they have any of your old records that you can use to support your claim of inaccuracy.  

Once the Dept of Justice receives your claim, they will perform their own investigation.  They will reach out to the court and the DA for any available records or transcripts.  If investigators need anything else from you, they will contact you by mail.  

"Phantom Arrests"

A more common, and more complicated problem arises when a RAPS Sheet shows an arrest, but no corresponding court case.  

Maybe the report shows that the subject was once arrested for something like "making a criminal threat" (PC 422), but there's no information about what happened after that.  The report does not indicate whether or not the person was ever charged or convicted, or what type of sentence was imposed.  

Even if the subject was eventually convicted based on this arrest, "making a criminal threat" can mean a lot of things.  422 can be treated as a serious felony (AKA a "strike") in some cases.  It can also be a misdemeanor.  A lot of the time, it can even be pleaded down to a simple infraction, like "disturbing the peace" (PC 415).  A 422 arrest on a RAPS sheet is going to lead to some questions, and any hiring manager is going to want answers.  

The most likely explanation for a "phantom arrest" is that the case was never filed.  The subject was arrested and held in jail over night, a prosecutor looked at the case, and decided not to file charges for whatever reason.  Maybe the evidence was weak, or maybe the police sincerely arrested the wrong guy.   The subject was released, and that's all that ever happened.  He was never convicted of any crime because he never went to court, and he never went to court because he was never actually charged with a crime in the first place.  

Without some indication of how this arrest was resolved, though, the HR manager (or gun store clerk, or customs officer, or school principal) who requested the background check is on notice of some major red flag.  And now someone's life is on hold until we can sort this out.  

"Detention" vs. "Arrest"

If a person is taken to jail in California, but never charged with a crime, that person can honestly state that he has "never been arrested".  That's because of section 849.5 of the California Penal Code, which says, "In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense...the arrest shall not be deemed an arrest, but a detention only."

If your criminal history report shows a "phantom arrest" and you were never charged with any crime, you are entitled to fix the record, so that it shows "***DETENTION ONLY PER 849.5***"  You are also entitled to receive a letter from the agency that arrested you, stating, "You were detained and not arrested on this date".

Updating your record to include the "849.5" notation can help clear up a lot of confusion.  That simple note makes the report more coherent by showing that every arrest is accounted for with some corresponding disposition.  Without it, a RAPS sheet is incomplete and a background check may come back with inconclusive findings.  

If you recently submitted to a background check and you were told that the results were "delayed" or "inconclusive", call us to discuss your options.  

Sealing Arrest Records

If your arrest did not result in a conviction, you are entitled to seal the records related to your arrest.  

This includes situations where the DA declined to file charges (the situation described above), where charges were filed but later dismissed, or where the defendant was found "not guilty" at trial.  It even includes cases where the defendant successfully completed "diversion" or "deferred entry of judgment" to earn a dismissal. 

Sealed arrest records are not available to the public, but can still be accessed by shared by law enforcement agencies, including the Department of Justice.  

Destroying Arrest Records

If a defendant can prove that he or she is "factually innocent" of the charges that the arrest was based on, they can petition the court to destroy any records related to the arrest.  

"Factual innocence" is a high bar for the applicant to overcome, though.  It's not enough to simply be "not guilty" of the crime.  To be factually innocent, the defendant has to prove that there is no reason to believe that he or she committed the crime.  That usually means proving that he was victim of identity theft, he was framed, or some extraordinary situation like that.  

Records that are destroyed are not even available to law enforcement agencies -- they are completely erased.

If you or a loved one has questions about your criminal history report, or if inaccuracies in your RAPS are causing delayed or inconclusive background checks, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Expungement Lawyer

Tuesday, July 5, 2022

What Does the Supreme Court's New Gun Case Mean for California?

The US Supreme Court delivered a bombshell last week in the case of The New York State Rifle & Pistol Association v. Bruen (or simply "Bruen").  Six of the Court's nine justices voted to strike down a 100-year-old New York law that generally prohibited carrying firearms outside of the home.  Previously, the state had granted "concealed carry" licenses only to applicants who could demonstrate some exceptional need for protection, beyond ordinary self-defense.  The Court found this restriction to be unconstitutionally onerous, declaring for the first time that individuals do not shed their Second Amendment rights when they step outside.  

Effectively, the Court announced that states must provide some legal means for law-abiding individuals to defend themselves with weapons outside of the home.  

Until now, the Court had always analyzed Second Amendment challenges by applying a test called "intermediate scrutiny".  Under intermediate scrutiny, judges try to determine the constitutionality of a law by performing a legal balancing act, weighing the interests of the government against the individual.  If the state has some important public policy objective in mind (e.g. "safety"), and the law at issue is closely related to achieving that goal, then the law is generally upheld.  

Applying the intermediate scrutiny test, courts have allowed laws to stand which limit the number of rounds that a firearm can hold, prohibit popular makes and models of weapons, and that ban common features, like detachable magazines.  California appellate courts have ruled that all of these restrictions are supported by important state interests that outweigh any legitimate needs of the people.  

In Bruen, though, the Supreme Court announced a new test for analyzing Second Amendment challenges.  Rather than applying intermediate scrutiny and weighing the interests of the government against the people, courts are now directed to apply a "historical analogy" test.  Under the new test, judges must try to determine whether a particular law is "historically analogous" to some other law that was generally accepted at the time at the time of the Constitution's adoption -- "Did this particular restriction exist at the time of the founding?  Would the Framers have thought that it was acceptable?".  Keep in mind that the Framers had cannons. 

This new test is a gamechanger for a lot of California laws.  CA has some of the most complicated, restrictive gun regulations in the country.  Last week, the Supreme Court gave some indications that Bruen is just the tip of the iceberg for California gun control.  The high court vacated a number of California appellate court decisions that had previously addressed Second Amendment-related issues.  It sent those cases back to the lower courts with instructions to apply the new Bruen rule.  The remanded cases involve California's concealed weapon licensing scheme, restrictions on "high capacity" magazines, and the state's ban on "assault weapons".  

It will be really interesting to see how (if at all) this new ruling also affects California's non-firearm-related weapons laws.  As I've previously discussed here, California has some goofy rules about carrying weapons in public.  You can carry a machete on your belt, for instance, but you cannot carry a 3-inch fixed blade if it's concealed on your body (but it's OK to keep a fixed blade concealed under the driver's seat of your car).  You can carry a concealed folding knife that's 3 feet long, as long as it isn't open and locked into position while it's concealed.  You can keep an unloaded shotgun in your trunk, but you cannot carry a baseball bat.  See what I mean?  These rules are probably not consistent with the court's new "historical analogy" test.  

There are still a lot of unanswered questions, and there will be plenty of litigation to work them all out.  In the meantime, CA is frantically trying to adopt a new regulatory scheme for issuing concealed weapons permits that will pass constitutional muster.  They still plan to interview applicants and to require that licensees complete an approved training course.  Some state legislators have already proposed throwing up regulatory road blocks, like excessive fees, to deter applicants.  

If you or a loved one has questions about weapons in California, call us for a free attorney consultation. (714) 449-3335.  Ask for John.  

We also have extensive experience in helping clients restore gun rights.  Many disqualifying charges in California can be reduced or dismissed after the defendant completes probation.  Depending on the circumstances, earning a reduction or dismissal may restore a person's right to purchase firearms.  

Wednesday, April 27, 2022

Fight a Fishing Ticket in Catalina Island Court

Catalina Island, located about 23 miles off the coast of Los Angeles, is home to a tiny, 1-room courthouse.  The building is only open on alternating Fridays to hear misdemeanor cases that arise on and around the island.  

We've been the #1 firm serving Catalina Island for about 10 years now.  In that time, the most common charges we've seen include things like drunk in public, battery, shoplifting, possession of drugs & drug paraphernalia, domestic violence, DUI (including a lot of golf cart DUIs), and of course, every fishing violation in the book.  

Gascon Changed Everything...

Since the voters of Los Angeles County elected George Gascon as District Attorney in 2020, law enforcement priorities have changed noticeably.  As a "progressive DA", Gascon immediately directed his prosecutors to ignore most low-level "quality of life" offenses that disproportionately affected the homeless and low-income Angelinos.  Suddenly, prosecutors were forbidden from filing charges in many non-violent misdemeanor situations.  The kinds of offenses that used to earn a year of probation and a little community service are now completely ignored by the Los Angeles County District Attorney's Office.

Gascon justified his lenient new policies as necessary to end the cycle of poverty that keeps low-income offenders on the streets and prevents them from finding steady employment and housing.  He argued that harsh police practices had historically bred distrust between minority communities and law-enforcement.  The only way to restore that trust, he concluded, was to simply ignore most crimes.  

Ironically, Gascon's "hands-off" approach to law enforcement has had the most glaring impact in the affluent enclave of Avalon, where an 800 square-foot bungalow can sell for nearly a million dollars.  Catalina does not have a homeless population, but the DA still forbids his deputies from pursuing charges in most low-level offenses that arise on the island.  There are plenty of exceptions, but the total number of cases filed in Catalina has taken a nose-dive since the new DA took office.  

...Except Fishing.

One notable area that has not been affected by Gascon's directive is fishing violations.  Wardens from the Department of Fish & Wildlife continue to aggressively patrol the waters around Catalina, and the DA still pursues these cases with vigor.  

The region is popular with both commercial and recreational anglers, and the California Code of Regulations can be a minefield for the uninitiated.  The island's coastline is a checkerboard of "marine life protected areas", where fishing is strictly prohibited.  The areas are not marked by any signs or buoys; it is the angler's responsibility to use a reliable map and GPS system and to avoid accidentally drifting into one of these traps.  Wardens also regularly board vessels to inspect catches, licenses and logbooks.  They're not in the business of giving warnings.  

If you are cited for some misdemeanor fishing violation near the island, wardens will assign you a court date at the Avalon Courthouse.  You must personally appear in court on that date, unless you are represented by a private attorney.  Private counsel can appear on behalf of our clients in most cases.  

The first court appearance is called the "arraignment".  This is the stage where the prosecutor formally notifies the defendant of the charge.  The defense attorney receives a copy of the warden's report and any evidence that was collected during the investigation.  The attorney enters a "not guilty" plea on behalf of the defendant, and further court appearances are scheduled.  

Between the first and second appearances, the attorney will meet with the client to review the report, the evidence, and a defense strategy.  At the next court appearance, the attorney should be prepared to sit down with the prosecutor and to discuss the case, including some proposed disposition (e.g., "This case is weak and should be dismissed", or "OK, I see what you have here.  My client is willing to pay a small fine", etc.). 

We Can Help

No law firm has more experience than us when it comes to defending cases on Catalina Island.  Other lawyers advertise that they cover Catalina, but they usually hire me to make their appearances for them.  We know how things work on the island and we know how to get the best results possible for our clients.  

If you or a loved one has been cited or arrested on Catalina Island, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Catalina Island Lawyer

Wednesday, April 20, 2022

Big Changes Coming for California DUI Laws

The California Court of Appeal delivered a bombshell ruling to the DMV last week.  This could be a gamechanger for any attorney who practices DUI defense, and to anyone arrested on suspicion of DUI in California.  To understand the magnitude of this ruling, let me first give a little bit of background.

Under California law, the DMV must automatically suspend the driver's license of any person who is arrested on suspicion of DUI.  That suspension goes into effect before the driver is convicted of any wrongdoing in court.  

If a driver wants to challenge this automatic suspension of his license, he must contact the DMV within 10 days of his arrest and demand a hearing (called an "Administrative Per Se" hearing, or an "APS" for short).  At the APS, a DMV hearing officer will review the police report and any evidence collected during the arrest.  The issues are limited to: 1) Did the officer have reasonable suspicion to believe that the driver was operating a vehicle while under the influence of alcohol? 2) Was the driver lawfully arrested?, and 3) Did the driver submit to a chemical test of his breath or blood with a result of 0.08% or greater?  If the answer to all 3 of those questions is "yes", then the DMV will suspend the defendant's license, regardless of the outcome of any court proceedings.  

Notice that the DMV is not interested in whether or not the defendant is actually guilty of DUI.  They are strictly trying to decide whether or not the officer was acting reasonably at the time he arrested the subject on suspicion of DUI.  Being arrested on suspicion of DUI is enough to lose your license in California.  

But that's not the worst part.  The thing that really unfairly stacks the deck against defendants in APS hearings is the fact that the DMV hearing officer serves several roles simultaneously.  He or she acts as the prosecutor who presents evidence against the defendant, AND as the judge who determines which evidence should be admissible, AND as the jury who ultimately decides whether or not the prosecutor (him or herself) has carried the burden of proof.  Even a Russian gymnastics judge would say, "That doesn't smell right."

The Court of Appeal finally stepped in last week and ruled in favor of the California DUI Lawyers Association in their suit against the DMV.  It determined that the practice of using hearing officers as both advocates and as triers of fact violates the principles of due process and fundamental fairness.  The DMV is prohibited from doing so in the future.  

The DMV has rescheduled all APS hearings until new procedures can be implemented and adopted.  Stay tuned to see what comes out of this.  I predict that the DMV will now assign two officers to each APS hearing -- one as a prosecutor and one as a judge / jury.  The court did not specifically rule that the same agency couldn't serve both roles, only that the same officer could not do so.  

This a baby step towards fairness in California DUI laws, but I'd still like to keep the box-checking bureaucrats at the DMV out of the process entirely.  

If you or a loved one has questions about DUI laws in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Orange County DUI Lawyer

Thursday, December 2, 2021

The Latest from the Catalina Courthouse

It's been a wild year in the Los Angeles County judicial system, especially on Catalina Island.  

The COVID shut-down(s) completely crippled the island's economy, where small bars and restaurants rely on the steady flow of weekend tourists and cruise ship passengers.  Avalon was a ghost town for months before local authorities approved outdoor dining plans and other safety protocols.  

The crowds are finally returning to the island and the town of Avalon is starting to bustle again, just in time for the seasonal slow-down.  From the outside, Catalina looks a lot like it did in 2019.  

From a local lawyer's perspective, though, the Catalina court system is still a disaster.

Last year, Los Angeles County voters ousted Jackie Lacey as their District Attorney and elected George Gascon to replace her.  Gascon had previously earned a reputation as a "progressive" prosecutor during his tenure as the DA of San Francisco.  Immediately upon taking office in LA, he implemented a sweeping new policy directive that completely reprioritized his department's responsibilities.  By largely ignoring crimes of "vagrancy" and low-level "quality of life" offenses, he redirected prosecutors in his office to focus on a handful of issues that he determined to be more pressing.  Possession of drugs, disorderly conduct, being drunk in public and low-level theft offenses now take a distant backseat to crimes like domestic violence, DUI, and "environmental" offenses (including violations of the Fish & Game Code).  

Gascon's new policy directive is not written in stone, though.  It still specifically allows prosecutors to file "low-priority" charges when the facts call for them (e.g. when the offender has a previous history of similar offenses, etc.).  It also requires that prosecutors who file such low-priority charges must seek the approval of their branch supervisor.  That last part is what makes the Catalina Courthouse unique.  

The Catalina Courthouse only hears misdemeanors.  Any felony case arising on the island is immediately sent to Long Beach.  Most misdemeanor courtrooms in Los Angeles County are staffed by junior prosecutors.  These baby lawyers are fresh out of law school.  They're usually not authorized to make big decisions, like whether or not to exercise discretion in dismissing a case or deviating from the boss's directives.  If the boss says not to file any more "drunk in public" charges, they may not do so without the approval of their branch supervisor.  Consequently "drunk in public" filings are way down throughout Los Angeles County this year.  

At the Catalina Courthouse, though, the lone prosecutor who is responsible for filing charges is the branch supervisor.  Gascon's new policy directive is only a "suggestion" for her, because she has the authority to approve any deviation that she sees fit.  On the bright side, she is just as backlogged as every other prosecutor in Los Angeles.  Catalina is experiencing massive filing delays right now and they aren't adequately staffed to catch up any time soon.  The laws of economics dictate that many low-level offenses are simply falling through the cracks.  Meanwhile, the DA's office is still aggressively pursuing its priorities.  Fishing-related offenses are at the top of the list -- including both recreational and commercial violations.  The LADA is also focusing its resources on domestic violence charges, "battery on a peace officer" and DUI -- including golf cart DUI cases that are so common on the island.  And as I mentioned above, the prosecutor in Catalina is still pursuing low-level theft and shoplifting offenses, regardless of her office's new policy directives.  

Our office is still appearing regularly at the Catalina Courthouse. and we're still getting great results for our clients.  We appreciate the unique nature of cases that arise on the island and we understand how to navigate the court system.  

If you or a loved one has been arrested or cited on Catalina Island, call us for a free attorney consultation.  714 449 3335.  Ask for John.  

Thanks for reading.  

Thursday, April 22, 2021

Possession of Drug Paraphernalia in Orange County

HS 11364 prohibits the possession of drug paraphernalia in California.  It is the most commonly-charged misdemeanor offense in Orange County.  

The law specifically says that it is unlawful to possess an opium pipe or any "device, contrivance, instrument or paraphernalia" used to unlawfully smoke or ingest a number of controlled substances that are listed individually in other parts of the California Health & Safety Code.  That includes straws, spoons, pipes, foil, and any virtually anything else that is used to consume meth, cocaine or heroin.  It does not include pipes, bongs or papers used to smoke marijuana.  

Starting this year, the law includes an exception for syringes and hypodermic needles that are used solely for personal use.  The exception will remain in effect until January 1, 2026.  This temporary carve-out was intended to help slow the spread of blood-borne diseases like HIV that are transmitted by sharing needles.  

To be convicted of violating HS 11364, the DA must prove that: 

  • The defendant possessed the item
  • The defendant knew (or should have known) that he possessed the item
  • The defendant knew that the item was drug paraphernalia
  • The defendant intended to use the item to ingest illegal drugs
There are many possible defenses to HS 11364 charges.  Even though the law sounds pretty simple on its face, each element of the offense can be tricky for prosecutors to prove, depending on the circumstances.  

The most obvious and common defense to any possession charge is police misconduct (i.e. an improper search).  If the police violate a defendant's privacy without probable cause, consent or a valid warrant, then anything that they discover may be suppressed in court.  

Prosecutors also need to prove that the item in question is actually contraband.  Many common, household items that are used to ingest drugs also have valid, innocent uses.  Of course, a straw can used to snort meth or cocaine, but it also be used to drink a soda.  It's not illegal to possess a straw unless the totality of the circumstances establish beyond a reasonable doubt that the defendant intended to use the innocuous object for some illegal purpose.  Even drug users can legally use straws to drink soda, so context is always important. 

Even if the item is clearly drug paraphernalia, prosecutors must prove that the defendant knew what it was and that he knew he was in possession of it.  If a crack pipe is found under the seat of a car, it may be difficult or impossible to prove that the driver was aware of it.  

HS 11364 is a misdemeanor.  A conviction can carry up to 364 days in county jail.  Luckily, a qualified, local criminal defense attorney can usually negotiate some alternative to actual custody, depending on the defendant's criminal history and the specifics of the offense.  

Orange County courts offer a variety of "diversion" or "deferred entry of judgement" (DEJ) programs.  In addition to the old PC 1000 and Prop. 36 options, the OC District Attorney's Office is pretty flexible with tailoring DEJ programs for individual defendants.  Under any diversion deal, a defendant is ordered to complete various terms and to remain law-abiding for some agreed-upon period of time.  Once the defendant completes his end of the deal, the case is dismissed like it never happened.  

Terms of DEJ can include providing a DNA sample for the state's database, attending some form of drug counseling or treatment, performing community service or labor, taking mandatory classes at Santa Ana Community College, paying a fine or making a "donation" to a victims' charity, or some combination of these things.  The period of time that the defendant must wait and remain law-abiding before earning the dismissal can also range from 3 months to 18 months.  These terms are negotiable.  

In some cases, the DA may insist that the defendant plead "guilty" before entering the DEJ program.  The plea is held in the court file, but it is not entered into the record and the defendant is not sentenced.  Instead, sentencing is postponed until some future date.  If the defendant complies with all terms of DEJ, then the case is dismissed at the time of sentencing.  

In California, a defendant is not considered to be "convicted" of a crime until he is sentenced.  Since defendants who successfully complete DEJ are never sentenced, they are not considered to be "convicted" of any crime under California law.  Note: entering a "guilty" plea may have immigration consequences, even if a defendant is never actually "convicted" in the eyes of the California court.  If you are not a US citizen, make sure that your attorney is aware of that fact before he or she starts the process of hammering out the terms of a DEJ deal.  

If you or a loved one has been arrested or cited for possession of drug paraphernalia, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Tuesday, February 2, 2021

New CA Law Will Allow Many Offenders to Avoid a Criminal Record

California recently passed a new law that will make many low-level offenders eligible for pre-trial diversion programs.  Defendants who complete one of these programs will be eligible to have their cases dismissed and the records of their arrests completely sealed from public view.  This is going to be a game-changer for the way that most petty crimes are prosecuted.  

I've previously written on this blog about why diversion might not be the best option for everyone (in some cases, it may actually delay the dismissal of charges, but that's a long story).  Today, I want to discuss some of the possible benefits of participating in a pretrial diversion program.  I'll also get into the criteria for eligibility and a broad overview of the process.  

PC 1000 and the History of Diversion

Until this year, most diversion programs were governed by section 1000 of the California Penal Code (AKA, "PC 1000").  That law created a process by which some drug offenders could work to earn an eventual dismissal of their charges.  The program was limited to defendants accused of drug possession for personal use.  Participants in the PC 1000 program were required to undergo drug treatment and to remain law-abiding for 18 months.  Upon successful completion, their cases would be thrown out and the records of their arrests sealed for most purposes.  

At the time of its adoption, PC 1000 was revolutionary.  It marked a major shift in the criminal justice system away from punishing drug users and toward a model that treated addicts as people who were sick and needed help.  

PC 1000 was intended to catch defendants in the early stages of their addictions.  It sought to intervene with treatment before drug problems spun out of control.  To that end, it was fairly restrictive with its criteria for eligibility.  To qualify for the program, defendants had to show that they had no felonies or drug-related convictions in the 5 previous years and that there was no evidence that they had committed any crime other than one for which PC 1000 was specifically authorized.  

The early drug diversion programs performed miracles for some participants, but the rules of eligibility were so restrictive that many people who needed help the most were excluded.  In response, the state legislature and local county courts experimented various new programs in the years that followed.  These "community courts" or "collaborative courts" focused specifically on other underserved segments of the population, including veterans, homeless people, and individuals suffering from untreated mental health issues.  By "diverting" those people into treatment and social services, courts found that they were able to reduce recidivism and break the cycles that contributed to crime in the first place.  

Big Changes for Diversion: PC 1001.95

PC 1000 and the various community court programs that followed were hugely successful in preventing and reducing crime.  In recognition of that success, the legislature recently voted to dramatically expand the availability of diversion to other, non drug-related offenses.

Since PC 1001.95 took effect on January 1, 2021, judges in California have been vested with the authority to grant diversion in a huge array of cases.  Under the new law, diversion may be available for virtually any misdemeanor, with a handful of exceptions (certain Vehicle Code violations including DUI, anything that requires registration as a sex offender, domestic violence and stalking). 

Previously, the decision to grant diversion was entirely up to the prosecutor.  A judge could deny diversion if he or she felt that it didn't serve the interests of justice, but a judge could not offer it over the prosecutor's objection.  PC 1001.95 turns that on its head.  

PC 1001.95 gives judges discretion to grant diversion, even over the prosecutor's objection.  It also allows them to craft terms of diversion to fit each specific defendant.  Defendants may be ordered to complete classes or counseling to address the underlying issues that contributed their offenses.  That might include anger management therapy, parenting classes, substance abuse counseling, lectures about the harms caused by shoplifting, etc.  Defendants must also pay restitution for any damage caused by or reasonably related to their crimes. 

Judges also have discretion to determine the total length of each defendant's diversionary time periods (during which defendants must remain law-abiding in order to earn a dismissal).  The law allows for periods up to 24 months, but it does not specifically require the court to set terms at that length.  Theoretically, a judge could agree to dismiss charges after 1 month (or 2, or 6, or any amount of time up to 24 months).  The length of diversion is going to be a major factor to consider before accepting any deal.  

Upon completion, the case will be dismissed and the record of the arrest completely sealed for most purposes.  The only time that a defendant would ever have to disclose the arrest would be in response to a direct question in an application to become a peace officer.  

There are still a lot of wrinkles to work out, and we all have questions about how the new procedures will work in practice.  Local judges have been meeting for the past few weeks to discuss the details.  Attorneys are waiting to hear whether or not the court will require a formally noticed, written motion before defendants may be granted diversion, or if judges will hear "pitches" in chambers conferences.  If they do require a written motion, will the court publish specific forms that we're expected to use?  Or are we supposed to draft our own briefs?  What will the time frame be for the prosecutor to object and to file their own written "Response"?  Will defendants have an opportunity to file a written "Answer" to the prosecutor's Response brief?  Will cases be assigned to a specific department to hear these pretrial motions?  Check back for news as it becomes available.  

If you or a loved one has been accused of a crime in Orange County or surrounding areas, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Orange County Criminal Defense Law