Court Initiated Misdemeanor Diversion - Pleadings And Proceedings Before Trial - Penal Law - CA

Section § 1001.95

This law allows a judge to offer 'diversion' to someone accused of a misdemeanor, which is a chance to meet certain conditions instead of being prosecuted right away. A judge can choose to do this even if the prosecutor objects.

The diversion can last up to 24 months, during which the defendant must follow terms or programs set by the judge based on their situation. If the defendant meets these requirements, the case will be dismissed. If they don't, the court can hold a hearing to decide if the case should proceed as usual.

However, diversion is not available for offenses requiring sex offender registration, domestic violence crimes, or specific stalking violations.

(a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.

(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.

(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.

(d) If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.

(e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:

(1) Any offense for which a person, if convicted, would be required to register pursuant to Section 290.

(2) Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.

(3) A violation of Section 646.9.

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Section § 1001.96

To have their legal case dismissed, a defendant who enters a diversion program must fulfill certain requirements. They must complete all court-ordered conditions and make full restitution, unless they can't afford it due to financial hardship. Additionally, if applicable, they must comply with any protective orders, stay-away orders, or bans on possessing firearms.

A defendant who is diverted pursuant to this chapter shall be required to complete all of the following in order to have their action dismissed:

(a) Complete all conditions ordered by the court.

(b) Make full restitution. However, a defendant’s inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.

(c) Comply with a court-ordered protective order, stay-away order, or order prohibiting firearm possession, if applicable.

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Section § 1001.97

If a person completes a court-ordered program under Section 1001.95, it's as if their arrest never happened. They can legally say they weren't arrested, and this record can't be used against them for jobs or benefits without their approval.

However, they must tell the truth about the arrest if they're applying to be a peace officer. The Department of Justice can still reveal this information for such applications.

(a) Upon successful completion of the terms, conditions, or programs ordered by the court pursuant to Section 1001.95, the arrest upon which diversion was imposed shall be deemed to have never occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of the terms, conditions, or programs ordered by the court shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(b) The defendant shall be advised that, regardless of their successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (a), this section does not relieve them of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.

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