Misdemeanor Diversion

Legislation was recently passed which provides for a diversion program for many misdemeanor charges. This new misdemeanor diversion law gives superior court Judges the authority to offer a diversion program to a person charged with a qualifying misdemeanor. This is significant because in the past, diversion could only be approved by the District Attorney’s office, and they often opposed diversion. So, the Judge can order diversion even if the prosecutor handling the case objects.

How Does Diversion Work?

A diversion program provides an alternative to criminal prosecution. Instead of the defendant going through a trial, a judge may “divert” the case and order the defendant to complete specific terms, conditions, and programs. These are typically activities such as attending AA meetings, doing community service and of course staying out of trouble during the term of diversion. Through diversion, the Judge can continue the case, for up to two years. Usually this is a 1 year term. During that time, the defendant is required to comply with all orders. If they successfully complete the diversion program, the case against them will be dismissed.

Successful completion of a diversion program includes:

  • Completing all court-ordered conditions

  • Paying restitution to the victim

  • Complying with protective or stay-away orders

  • Complying with orders prohibiting firearm possession (if applicable)

If the defendant violates any of the terms of their diversion program, the court will hold a hearing to determine whether such violation occurred. If it finds that the defendant did not adhere to program conditions, their case will recommence.

Before the new law took effect, each county determined whether an alleged misdemeanor offender was offered a diversion program. allows this to happen statewide.

Does the Diversion Program Apply to All Misdemeanors?

A judge may offer the diversion program to defendants charged with a wide range of offenses.

Misdemeanors to which diversion applies include, but are not limited to:

  • Assault

  • Carrying a concealed firearm

  • Alcohol related offenses.

  • Petty theft charges

Although this new legislation covers several misdemeanor crimes, there are still some for which a judge may never offer the diversion program.

These include:

  • Offenses requiring sex offender registration

  • Injury to a spouse or dating partner

  • Battery

What Are the Effects of Completing a Diversion Program?

The effects of successfully completing a misdemeanor diversion program are many. They have both immediate and long-term impacts. As far as immediate effects go, they include avoiding a costly, lengthy, and contentious trial.

Long-term, successful completion of a diversion program allows the defendant to avoid having a criminal record. As mentioned earlier, after the defendant meets all court-ordered conditions, the case against them is dismissed. This means that the arrest will not show up as a conviction on the individual’s criminal record. They can lawfully say that they have never been convicted of the crime for which they were placed in the diversion program. Also, no employment, benefit, or licensing decision may be solely based on the arrest.

Being free of a criminal record has many positive implications. Having an arrest or conviction show up on a background check can make it difficult for a person to find a job or a place to live, making it hard for the individual to become a productive member of society. If the individual does not have a criminal record, they will not face these hurdles.

It must be noted, though, that even if the individual completed a misdemeanor diversion program, the Department of Justice can still access the arrest information if the individual applies for employment as a peace officer. Also, if one is directly asked during the hiring process about past arrests, one must answer that they have been arrested, but the case was dismissed.

This new law is an excellent option for many people looking at a criminal conviction. Our firm would write up a motion and argue your case to request diversion. Feel free to call us for further information .

A Felony Vs. A Misdemeanor

Many people do not know the difference between the type of charges they face. The three categories are divided based on the type of punishment you face depending on the seriousness or non-seriousness of your conduct.

There are three types of charges:

  • An Infraction  -fines only, no probation, no jail time
  • A Misdemeanor -fines, probation, maximum 1 year in county jail,
  • A felony -fines, probation, up to 1 year in county jail, possibly state prison for more than 1 year, parole

Infractions

An infraction is a minor criminal charge and does not carry any incarceration or jail time. There is also no probation for infractions and the only punishment is financial. However, the court can order severe restrictions such as a driver’s license suspension, or loss of a fishing and hunting license. This means, if you are charged with an infraction, the punishment you receive will not include jail time.

The reason an infraction is not considered “criminal” is because it does not appear on your Department Of Justice criminal records. Infractions do appear on your driving record, court record, local police agency records but generally are not reflected on your DOJ records because they are not considered as serious as a misdemeanor or a felony.

Common infractions are seatbelt violations, simple speeding tickets, littering citations, running a red light, and failure to stop properly at a stop sign. Many times traffic school is offered for certain infractions considered a moving violation- infractions that carry a point on your driving record. Certain charges like disturbing the peace or trespassing can be charged either as an infraction or a misdemeanor depending on the circumstances.

Because of the non-criminal nature of infraction charges, the accused does not have the right to a jury trial but does have the right to face the allegations against him/her by way of a bench trial (no jury, the judge will decide the facts).

Wobbler Charges

Certain charges, include provisions in the Penal Code that allow them to be charged either as a misdemeanor or a felony, these are considered a wobbler and depending on the surrounding circumstances of each case, the District Attorney decides what type of charge to file. Notably, a skillful attorney can many times reduce a wobbler charged as a felony to a misdemeanor and may also be able to avoid a felony filing all together if engaged early on in the prosecution.

Misdemeanor Charges

A misdemeanor is a crime punishable by maximum confinement of one year in county jail.  Misdemeanors also carry fines, commonly a maximum fine of $1,000.00. Misdemeanor defendants are guaranteed certain rights because of the seriousness of the charges they face, including the right to an attorney and the right to a jury trial.  Misdemeanor cases can go on for several months and in unusual cases last more than a year, due to the gravity and complexity of these cases.

3 Stages of a Misdemeanor Case

A misdemeanor case can be broken down into three stages.  The first stage is called an arraignment.  At arraignment, the court asks the defendant to enter a plea of “guilty” or “not guilty.”  The court does not consider whether the charges are true or not, and no evidence is presented.  In almost all cases your attorney can appear for you at the arraignment without your presence in court.  At the arraignment, the court will set pretrial and jury trial dates.  It is customary procedure to set a jury trial date, even if the case will not go to trial. The jury trial date will typically be rescheduled several times.

The second stage is the pretrial. At the pretrial, the prosecuting attorney and defense attorney discuss the case. The defense may ask for information and evidence from the prosecution, called discovery. The attorneys also try to negotiate a resolution acceptable to both sides. Defendants who have attorneys do not participate in the pretrial.  In most cases, your attorney can represent you at pretrial without your personal appearance. A typical case will have two or three pretrials.  Pretrials give the defense an opportunity to get all the evidence it needs, time to consider that evidence, and an opportunity to make efforts at negotiation.

The third stage is trial.  Most cases do not go to trial, but are instead resolved by plea bargain.  However, every defendant in a misdemeanor case has the right to a trial by jury.

If a case cannot be resolved at the pretrial stage, the defense attorney may make a last-ditch effort to settle the case on the day of trial.  If the case cannot be resolved, the defense will announce “ready” for trial.  The prosecution and court then have ten days in which to start trial.  Misdemeanor trials typically take from two to five days.

Minimum Punishments

Many misdemeanors carry mandatory minimum punishments.  For example, the crime of being under the influence of narcotics (Health & Safety Code Section 11550) carries a 90 day minimum jail confinement for a first offense, and a third DUI carries a 120 day jail minimum. The legislature has taken discretion from the courts and attorneys to negotiate below certain minimum punishments on many crimes, particularly for second time and greater offenses.

Other Consequences of a Misdemeanor Conviction

  • For non-citizens, a conviction may impact one’s visa, immigration status, immigration applications, entry into this county, and can result in deportation.  In all pleas, a defendant initials and signs a form whereby he/she waives certain rights and indicates agreement to a negotiated sentence.
  • If you are convicted of any drug offense, the offense of a minor in possession of alcohol, or convictions which generate points on your driving record (principally DUI or driving on a suspended license), your conviction may result in the suspension of your Driver’s License.
  • You can also lose your right to bear arms.  If you are convicted of any offense involving violence, you may be barred from possessing firearms for ten (10) years.  If you are convicted of certain sex or drug offenses, you may be required to register with your local police as a sex or narcotics offender indefinitely.  The law enables individuals and entities outside the criminal justice system to access sex offender registration information.

Your Criminal Record or Rap Sheet

California Offender Record Information, “CORI”, also know as “Rap Sheets”, are documents maintained in a database by the California Department of Justice.  Under Penal Code Section 13125, once you are arrested, a record of that arrest and the subsequent activities in the resulting criminal prosecution are recorded and maintained on your “rap sheet”.  This information is available only to local and state law enforcement personnel, courts, certain public entities, prosecutors and federal law enforcement agencies.  Even if your case results in a dismissal or acquittal, this information is preserved indefinitely.  In other words, even if all charges are dropped, this does not cleanse your record of the notations showing allegations, arrest and prosecution.

Sentencing Alternatives In General

A major role of the defense attorney is to explore and recommend alternatives to incarceration, where appropriate.  These “sentencing alternatives”include in-patient and outpatient treatment programs, counseling, volunteer and work programs, formal probation, fines, classes and weekend confinement.  These alternatives can be utilized in lieu of prison, sometimes facilitating settlement.  However, every case is unique, and sentencing alternatives are not appropriate or acceptable in every case.  Many judges are very reluctant to employ sentencing alternatives in felony cases.