Misdemeanor Diversion in California: How Penal Code 1001.95 Works

How judicial diversion works

Under Penal Code section 1001.95, a judge in the superior court where a misdemeanor is prosecuted may offer diversion, at the judge's discretion and over the objection of the prosecutor. The judge can continue the case for up to 24 months and order the defendant to comply with terms, conditions or programs the judge considers appropriate, such as classes, counseling, community service or restitution.

If the defendant complies with the terms, the judge dismisses the case at the end of the diversion period. If it appears the defendant is not complying, the court must give notice and hold a hearing before it can end diversion and resume the prosecution.

Charges that cannot be diverted

The statute excludes certain current charges: any offense that would require registration as a sex offender under Penal Code section 290, any offense involving domestic violence as defined in the Family Code or the Penal Code, and stalking under Penal Code section 646.9.

DUI cases raise a separate question, because the Vehicle Code has long restricted diversion for DUI charges. Whether a DUI can be diverted under 1001.95 has been disputed, so ask an attorney how courts currently treat it before counting on it.

• Ask whether a plea is required; section 1001.95 itself does not call for one.
• Ask what the conditions would cost and how long they would take.
• Ask how the arrest and the diverted case would appear on background checks.

Other kinds of diversion

California has several other diversion programs with their own rules. Mental health diversion under Penal Code section 1001.36 can apply to misdemeanors and many felonies when a qualifying mental health condition played a significant role. Deferred entry of judgment and drug diversion under Penal Code section 1000 cover certain drug offenses. Military diversion under Penal Code section 1001.80 can apply to current and former members of the armed forces. Many counties also run collaborative courts, such as drug or veterans courts.

Diversion is not automatically the best outcome. The conditions can be demanding, a failed diversion returns the case to court, and for non-citizens or professional license holders the details matter. A criminal defense attorney can compare diversion with a dismissal, a reduced charge or a trial in your case.