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.