The California Legislature had a busy year in 2020 as it concerns criminal laws. Several significant changes in criminal law will go into effect at the beginning of 2021. I will discuss some of those changes in future blogs but for this post, I want to focus on AB-3234.
AB-3234 was signed into law and is codified in the Penal Code at section 1001.95. Effective January 1, 2021, it portends sweeping changes in the way misdemeanors are prosecuted in this state…or maybe a better way of stating it is “not prosecuted.” For all but a few misdemeanor crimes, this new law takes the prosecution of misdemeanors out of the prosecutor’s domain and allows the court to order a diversion, rather than prosecute the crime. For almost all misdemeanor crimes, the defendant can request the court order a diversion, which if granted, allows the defendant to avoid any prosecution at all. In fact, if the defendant successfully completes the terms and conditions of the diversion, the crime is as if it never happened because the arrest for the crime will be deemed to have never occurred.
The misdemeanor crimes that will not qualify for diversion are few. They are Penal Code section 290 crimes (crimes that require registration as a sex offender), sexual assault (Penal Code section 273.5), domestic violence (Penal Code section 243(e)), and stalking (Penal Code section 646.9). This is a rather odd list when you consider that other misdemeanors such as elder and child abuse, DUI, misdemeanor assault (other than domestic violence), just to name a few, are not on the list of excluded misdemeanors. (There is a push to amend the law to include DUI as one of the excluded offenses, but for now, it is eligible for diversion under the new law.)
How will the new law work? A defendant charged with a misdemeanor may request the court grant diversion, even over the prosecution’s objections. Do not try this on your own. There is no automatic right to a diversion; it is left to the judge’s discretion. A criminal defense attorney knows how to navigate the law and understands how to argue for diversion before the court. Other than the crimes listed above, there are no other barriers to making this request. While technically, a defendant may be granted diversion multiple times, the court may refuse to grant diversion to a defendant who has already been given the benefit of diversion on a previous crime. The granting of diversion is up to the court and the court sets the terms and conditions of diversion. That will likely include required participation in classes or programs appropriate to the defendant’s offense. The court can continue diversion for up to 24 months, but if at any time, the court finds the defendant is not complying with the terms and conditions of diversion, the judge may end the diversion and resume the criminal proceedings. Successful completion of the diversion mandates that the criminal action be dismissed and the arrest erased from the defendant’s record.
Many crimes in California are “wobblers.” Wobblers are crimes that can be prosecuted as a misdemeanor or a felony. With this new law—which the prosecutors are not happy about—I am quite sure the district attorneys will be prosecuting every wobbler as a felony in order to retain control of the prosecution. For straight misdemeanors that qualify, however, a criminal defense attorney should always request a diversion.
Orange County criminal defense attorney, William Weinberg, is a diligent advocate for his clients. If you have been charged with an eligible misdemeanor, he will make the strongest case possible for the diversion of prosecution on your case. You may contact him at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com. He will review your matter free of charge and advise you of your best options.