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Misdemeanors and the Traditional Power of the Prosecutor

While a misdemeanor is considered a lower-level criminal offense compared to felonies, it is still a criminal offense, carrying no more than 364 days in the County Jail. Misdemeanors, though considered lower level,  can still be devastating to those seeking new job opportunities, admission to university, who possess certain professional licenses or seek to obtain such professional licenses, and many other hardworking people who may have made a single mistake, have a substance abuse problem, or were simply at the wrong place at the wrong time.

The District Attorney of each of California’s counties generally control whether a case will “resolve” short of a jury trial, which usually requires that the defendant accept a plea deal where they must plead guilty or no contest and suffer a criminal conviction. Other times, prosecutors can offer a “diversion”, which is a catchall word generally meaning any type of case resolution that has the opportunity to result in a dismissal. Some types of offenses, such as simple drug possession, require that a defendant be notified of eligibility for diversion, and have set “formal” requirements for the diversion term that would lead to a dismissal –  such as a 24-hour court-approved drug class. (See, e.g., Cal. Penal Code § 1000). Other times, the prosecutor may offer an “informal” diversion agreement that allows a defendant to withdraw a no contest plea if they complete certain terms, or just to dismiss the case without requiring the defendant to plead no contest if they complete certain terms, like NA meetings, anger management, or similar programming.

Traditionally, diversion opportunities were only available to defendants if and when the prosecutor determined to make these offers and if they did not, the Court had no authority to dismiss the case or offer diversion to the defendant without the prosecutor’s consent – the only options were to accept any offer made by the DA or go to jury trial if all other options were exhausted. Fortunately, Penal Code sections 1001.95-1001.97 were added to the Penal Code by the Legislature, now providing the Court to offer any type of Diversion it sees fit in most misdemeanor cases without the prosecution’s consent.


Penal Code sections 1001.95-1001.97 were added to the California Penal Code to be effective as of January 1, 2021, providing the Court the discretion to place criminal defendants charged with misdemeanors on a grant of Court-Initiated Diversion over the objection of the prosecution, subject to only four listed exceptions.

On January 1, 2021, Penal Code section 1001.95 became effective after enactment of Assembly Bill 3234 by the Legislature, granting the Court discretion to place criminal defendants charged with misdemeanors on a new type of pre-trial diversion targeted to suit their needs– with or without the prosecutor’s consent – providing:

(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.

See Cal. Penal Code § 1001.95(a)-(b).

There are only four enumerated types of misdemeanor offenses for which Penal Code section 1001.95 diversion may not be available, including any offenses for which Penal Code section 290 registration may be ordered upon conviction, any violation of Penal Code section 273.5(a), any violation of Penal Code section 243(e)(1), and any violation of Penal Code section 646.9. See Cal. Penal Code § 1001.95(e).

In the case of a grant of diversion in which the defendant does not appear to be complying with the terms ordered by the court at any time during the diversion period, the court may hold a hearing to determine if criminal proceedings should be reinstated, whereafter diversion may be terminated if the defendant is not in compliance. Cal. Penal Code § 1001.95(d). However, if the Court exercises its discretion to grant diversion under Penal Code section 1001.95, and the defendant has complied with the imposed terms and conditions imposed by the Court pursuant to that diversion grant, “at the end of the period of diversion, the judge shall dismiss the action against the defendant.” See Cal. Penal Code § 1001.95(c). Furthermore, in tandem with the dismissal, the arrest upon which the case was premised shall be dismissed as if it had never occurred, except such arrest shall be disclosed where the defendant seeks employment as a peace officer. See Cal. Penal Code § 1001.97.

While on a grant of Diversion, a defendant is required to complete all conditions imposed as a part of the grant of Diversion, make full restitution to any victim where applicable and within the defendant’s ability to pay, and comply with any court ordered protective order, stay-away order, or firearm prohibition imposed by the Court where appropriate as a term of Diversion. Cal. Penal Code§ 1001.96.

The new statutory scheme allowing for Court-Initiated Misdemeanor Diversion thus creates a vehicle by which the Court can prevent unnecessary harm to a defendant in terms of a criminal record, while ensuring that a defendant may undergo rehabilitative monitoring, programming, testing, or therapy that seek to prevent any recidivism back into the criminal justice system.

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If you or a loved one has been charged with a misdemeanor offense in Solano, Yolo, or Napa County, and you are concerned about the potential negative impact a conviction could have on your life, you need an experienced, trusted attorney who can fight for you and advocate for the Court to place you on a grant of Court-Initiated Diversion under Penal Code section 1001.95 if no other options for dismissal exist in your case. At Honeychurch Law, we have obtained outstanding results for our clients since 1978 when our office was founded. Even if you are not eligible for Diversion based on your charges, our experienced attorneys can help you obtain the result you deserve. Call our office today at 707-429-3111 to schedule a free consultation to determine how we may be able to assist you in obtaining the best possible outcome for your case.


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