Introduction

Diversion can be defined as a system ordered by a judge which requires that the defendant completes a set of tasks within a predetermined time. In other words, it is a program that allows defendants to avoid serving jail time by completing treatment and education classes.

Different Forms of Diversion

1.     Misdemeanor diversion
2.     Pre-trial diversion/deferred entry of judgment
3.     Diversion involving individuals with mental disorders
4.     Military diversion program
5.     Pre-trial diversion program for drug crimes

Misdemeanor Diversion

According to Section 1001.95 of the Penal Code of California, a judge has the discretion to offer a defendant diversion in misdemeanor cases. This discretion is absolute and supersedes any objection by a prosecuting attorney.

The judge in such cases may divert a case for up to 24 months and instruct that the defendant complies with the terms and conditions which the former considers suitable depending on the defendant’s particular circumstances.

Where the defendant complies with the imposed terms and conditions, the judge will proceed to dismiss the action against the defendant at the expiration of the diversion period. However, where a defendant fails to adhere to the imposed terms and conditions of diversion, the defendant is issued with a notice. Thereafter, the court shall convene a hearing to determine if the criminal proceedings should be reinstated. If the outcome of the hearing is that the defendant has flouted the imposed terms and conditions, the court shall end the diversion and order recommencement of the criminal proceedings.

Offenses for which diversion under Section 1001.95 is not offered include:

1.     Sexual offenses requiring registration pursuant to Section 290 of the Penal Code.
2.     Offences on abandonment and neglect of children pursuant to Section 273.5 of the Code.
3.     Offences relating to battery against a spouse pursuant to Section 243 subdivision (e) pursuant to the Penal Code.
4.     Miscellaneous offenses as stipulated in Section 646.9 of the Code.

Diversion Involving Individuals with Mental Disorders

Concerning individuals living with a mental health issue, diversion is normally a standard option sought. In the course of the proceedings, the court may at any time require that the defendant makes a prima facie case that s/he meets the minimum requirements necessary to qualify for diversion and that the defendant and the offense committed are indeed suitable for diversion. Where a prima facie case cannot be established, the court may summarily deny the request for diversion or grant any other relief it so deems appropriate.

The court will usually grant pretrial diversion to such persons after considering both the prosecution and defense positions provided the particular defendant satisfies the following requirements as set out in paragraph (1) of subdivision (b) of Section 1001.36:

1.     The court is convinced that the defendant has a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, such as post-traumatic stress disorder. However, antisocial personality disorders, borderline personality disorder, and pedophilia are excluded from qualifying a defendant for diversion. In this case, the defense is tasked with providing evidence of the defendant’s mental illness, and this must include a current diagnosis by a qualified mental health expert.
2.     The court is persuaded that the defendant’s mental disorder significantly contributed to the offense’s commission after a thorough review of the relevant and credible evidence.
3.     That based on the judgment of a qualified mental health expert, the defendant’s symptoms of the mental disorder influencing the criminal behavior would respond to treatment.
4.     The defendant has consented to diversion and thus waives their right to an expeditious trial except where the defendant is found to be an appropriate candidate for diversion by virtue of clause (iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 of the Penal Code and cannot, therefore, give their consent.
5.     The defendant agrees to conform to treatment as a condition of diversion.
6.     The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety pursuant to Section 1170.18 if treated in the community. Here, the court considers the view of the district attorney, defense or a qualified mental health expert, the defendant’s criminal history, and other factors the court deems appropriate.

Offenses for which diversion under Section 1001.36 is not offered include:

1.     Murder or voluntary manslaughter
2.     Sexual offenses requiring registration pursuant to Section 290 of the Penal Code save for a violation of Section 314.
3.     Rape
4.     Lewd or lascivious act on a child below 14 years of age.
5.     Assault with the intention of committing rape, sodomy or oral copulation in violation of Section 220.
6.     Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
7.     Continuous sexual abuse of a child, in violation of Section 288.5.
8.     A violation of subdivision (b) or (c) of Section 11418.

Military Diversion Program

This applies to a case before a court on an accusatory pleading alleging the commission of a misdemeanor and is found in Section 1001.80 if the following conditions apply simultaneously:

1.     The defendant was or is currently a member of the United States military.
2.     The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse or mental health problems as a result of his/her military service.

Upon determining that a defendant meets the above criteria, the court may place the defendant in a pre-trial diversion program with the consent of the defendant and waiver of an expeditious trial.

Where it is found that the

Pre-Trial Diversion Program for Drug Crimes

Penal Code 1000 establishes the pre-trial diversion program for drug crimes involving simple possession. This was formerly referred to as deferred entry of judgment (DEJ). This program simply allows numerous non-violent drug offenders to undergo treatment and education as opposed to doing jail time. Upon successful completion of the program, the defendant’s charges are dismissed, leaving no criminal record.

This program applies to cases brought forth under certain sections of the Health and Safety Code, Penal Code, and Business Professions Code, except as provided under Section 11357 of the Health and Safety Code, where the prosecuting attorney is of the opinion that the defendant is eligible for diversion:

1.     Section 11350, 11357, 11364 or 11365 of the Health and Safety Code
2.     Subdivision (b) of Section 23222 of the Vehicle Code
3.     Section 11358 of the Health and Safety Code if planted or processed for personal use
4.     Section 11368 of the Health and Safety Code where the narcotic drug was obtained using a conjured prescription and is for personal use by the defendant and was not sold to another person
5.     Subdivision (d) of Section 653f of the Penal Code if the solicitation was for acts directed to personal use only
6.     Section 381 of the Penal Code
7.     subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance
8.     Section 4060 of the Business and Professions Code

A defendant is eligible for the program if:

1.     S/he has not been convicted of any offense involving controlled substances within five years prior to the alleged commission of the charged offense.
2.     The offense charged did not involve a crime of violence.
3.     There is no evidence proving a concurrent violation involving narcotics or restricted dangerous drugs.
4.     S/he has a record of felony conviction within five years prior to the alleged charged offense.

Notably, a defendant charged with selling or transporting a controlled substance or possession of a controlled substance for purposes of effecting a sale as outlined in Section 11351 of the Health and Safety Code is not eligible for pre-trial diversion.

Defendants participating in diversion programs for drug crimes may be required to analyze their urine for testing or the presence of drug substances. This is done as a part of the program. However, it should be noted that the results of such urinalysis shall not be admissible as evidence for new criminal proceedings. It is merely done to confirm that the defendants are adhering to the terms and conditions of the treatment program.

Proposition 36

Proposition 36 was established under Section 1210–1210.1 and 3063.1 of the Penal Code. Prop 36 allows eligible defendants to get their charges dropped upon successful completion of a program sanctioned by the court on drug treatment.

The drug treatment approved by the court includes the following:

1. a)     Education on drugs
2. b)     Residential treatment or outpatient services
3. c)     Replacement therapy for narcotics or detoxification services
4. d)     Aftercare services

Prop 36 brought about changes that intimated that individuals facing their first or second non-violent convictions on drug possession ought to be sentenced to a year of treatment instead of a jail sentence. Where deemed essential, the program can be extended for a period of six months twice only. It has been witnessed that at the beginning of this program, a majority of the eligible participants preferred outpatient programs while a few opted for the residential programs. Others selected detox programs in clinics as their preferred form of treatment.

Prop 36 also establishes a program that includes parolees that neglect their parole conditions of committing non-violent drug offenses. The program entails placing a parolee accused of non-violent narcotics possession or one that breaches a drug-like situation in a treatment program as opposed to having them return to jail.

Deferred Entry of Judgment

Deferred entry of judgment was a term mostly used before the amendments of 2018. It was mostly used to refer to the situation where a defendant had to plead guilty to the charged offense so that the plea would mean that judgment had been made and thus would be deferred while the defendant underwent a diversion program and upon successful completion of the program the judgment would be dismissed. After the 2018 amendments to the law, a defendant need not plead guilty to pursue diversion, and thus the process is now called pre-trial diversion.

Conclusion

Generally, diversion can be stopped and criminal proceedings instituted at the discretion of the court where:

1.     It is found that the defendant fails to comply with the terms and conditions of the diversion program.
2.     The defendant is not benefiting from the treatment and services provided under the program.

A diversion is, however, a good option for defendants as opposed to serving jail time. Provided the defendant obeys the imposed terms and conditions of the diversion program, she or he will eventually have the alleged charged offense dismissed and, as a result, the criminal records detailing the offense sealed.

Getting into a diversionary program requires a skilled and experienced lawyer to help you with all the court procedures. In truth, it isn’t uncommon for courts to deny defendants to enter into a diversion program. Criminal Defense Heroes, P.C. has experience with helping clients successfully complete diversion programs that span over a decade. Contact our office at (323)529-3660 to find discuss whether you’re eligible for a diversion.