New CA Law Will Allow Many Defendants to Avoid a Criminal Record
CA recently expanded access to diversion programs so that most misdemeanors now qualify. Upon completion of diversion, all charges will be dismissed and the record of the arrest completely sealed from public view.
PC 1000 and the History of Diversion: How We Got HereUntil 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 1001.95PC 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 (anything that requires sex offender registration, 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 allows judges to set terms of diversion (the time periods during which defendants must remain law-abiding) 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.
During that time period, the defendant may be ordered to complete classes or counseling to address the underlying issues that contributed to his or her offense. That might include anger management therapy, parenting classes, substance abuse counseling, lectures about the harms caused by shoplifting, etc. The defendant must also pay restitution for any damage caused by or reasonably related to his or her crime. 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, 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? PC 1001.95 doesn't specifically exclude DUI charges from eligibility, but will judges allow diversion of DUI cases as a matter of policy? We're all waiting for some news. Check back for updates as they become available.