Misdemeanor diversion under Penal Code section 1001.95 is possible for most misdemeanor charges. However, it is not available for misdemeanor violations of Penal Code section 273.5 (domestic violence), 243(e) (domestic violence battery), 646.9 (stalking), or any crime for which registration is required under section 290 (sex offender registration).
Applying for Misdemeanor Diversion
- Ask the prosecutor for diversion. Many prosecutors offices already have a misdemeanor diversion program that they offer to defendants facing non-violent misdemeanor charges. Sometimes the prosecutor will offer diversion before any criminal case is filed with the Court. If charges are filed, the defendant can still be placed into a prosecution diversion program by negotiating with the prosecutor.
- Ask the Judge for diversion. Under Penal Code section 1001.95, the Judge may grant diversion even over the objection of the prosecutor. If diversion is granted, the defendant must comply with the terms, conditions, and programs ordered by the Judge.
Benefits of Diversion
If diversion is granted, criminal proceedings are suspended during diversion. If the defendant complies with all the terms, conditions, and program ordered by the Judge, at the end of the diversion period the Judge must dismiss the case against the defendant.
Length of Diversion
Although diversion can be up to 24 months, it typically lasts 6 months to one year. For some prosecutor diversion programs, the length of diversion is 90 days. However, the defendant can ask the Judge to terminate diversion prematurely once they have successfully completed all conditions and programs.
Failing Misdemeanor Diversion
If the defendant does not comply with the terms and conditions of diversion, the Court will hold a hearing to determine whether to resume criminal proceedings. If the Court finds that the defendant has not complied with the terms and conditions, the criminal case against the defendant will resume.
Terms of Diversion
Terms and conditions of diversion are usually crafted to address the defendants charges. For example, if the defendant is charged with drunk in public, AA meetings and an alcohol course may be ordered. For a petty theft charge, the defendant could be ordered to pay restitution for their damages and attend a theft awareness course.