Judicial diversion, in the legal sense, is an alternative, or circumvention, to criminal prosecution. In other words, when a defendant enters a judicial diversion program, he is diverted from the course of criminal prosecution, and directed to a course that leads to non-criminal prosecution and dismissal of the criminal charges.
There are several types of diversion in California, including military diversion, mental health diversion, drug diversion, judicial diversion, and more. This article deals with judicial diversion pursuant to California penal code 1001.95 as that law applies to sex crimes allegations. Other types of diversion programs have different requirements and may or may not apply to felony or misdemeanor sex crimes.
Example: In California, David is charged with solicitation of prostitution (PC 647(b)). If David is successfully criminally prosecuted, he may end up with a criminal record, probation terms, and possible jail. On the other hand, if David is offered judicial diversion, and he is successful with the diversion program, then David will end up with no criminal record, no probation, and no jail.
Judicial Diversion Completion: Judicial diversion requires the defendant to fulfill ‘conditions of diversion’ before his case is diverted (dismissed). In other words, if the defendant enters a judicial diversion program, he may still be criminally prosecuted unless and until he fulfills all the conditions of diversion.
Example: David is charged with engaging in lewd conduct in public (PC 647(a)). He is offered judicial diversion pursuant to Penal Code 1001.95. David is ordered to attend a class as part of his diversion program; however, David fails to complete the required classes. Therefore, the judge reinstates criminal proceedings against the defendant.
Note: a judge may allow a defendant to reenter diversion after the defendant has failed to complete a term of diversion. Whether the judge allows the defendant to be reinstated into a diversion program after the defendant has failed to complete a diversion term is decided on a case-by-case basis.
Terms of Judicial Diversion: Every case is different; therefore, the terms of judicial diversion are different in every case. With that in mind, most judicial diversion requirements will include attendance of an online class, payment of a fine, a condition to remain free from new misdemeanor or felony criminal charges during diversion (i.e., 4-24 months), and more.
Example: David has nude images of Melissa that she allowed David to keep during their relationship. Later, Melissa breaks up with David. Thereafter, David puts Melissa’s nude images on social media and porn sites to get his revenge (i.e., “revenge porn”). Later, David is charged with distributing nude images to humiliate (PC 647(j)(4)), and he is offered judicial diversion. As a special term of diversion, David must destroy all images of Melissa in his possession. David complies with all diversion terms and his criminal charges are dismissed.
Judicial Diversion Requirements
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 (PC 1001.95(a)).
Misdemeanor Charges Required: As noted, judicial diversion is only allowed in misdemeanor cases. However, a case that may be charged either as a misdemeanor, or alternatively as a felony (i.e., a “wobbler” crime), qualifies for judicial diversion, so long as the defendant is either charged with the misdemeanor version of the offense, or the defendant's felony charge is subsequently reduced to a misdemeanor (i.e., request to reclassify felony charges to misdemeanor charges [PC 17(b)]).
Example: David is charged with felony statutory rape (PC 261.5), a “wobbler” crime; therefore, David does not qualify for judicial diversion. However, David is successful in his request to reclassify his felony charge to a misdemeanor charge. Thereafter, David qualifies for judicial diversion upon permission from the court.
PC 290 Disqualification: A PC 290 sex crime is not eligible for judicial diversion (PC 1001.95(e)(1)). A PC 290 sex crime is any sex offense that requires the defendant to register as a sex offender. For more information, see PC 290 Crimes & Requirements.
Note: Other non-sex crimes disqualifications for judicial diversion include domestic violence crimes and stalking crimes.
Keep in mind that most sex crimes, even misdemeanor sex crimes, require the defendant to register as a sex offender pursuant to PC 290; however, the following is a list of misdemeanor sex crimes that may qualify for judicial diversion because PC 290 registration is not required for these sex crimes:
Referring Client to Prostitutes (PC 318)
Contract to Pay Minor for Sex (PC 310.5)
Show Lewd Matter to Minor (PC 288.2(a)(1))
Consensual Sex with Confined Adult (PC 289.6)
Send Harmful Matter to Minor (PC 313)
PC 290.006 Issues: Some sex crimes do not require sex offender registration. Nevertheless, California penal code 290.006 allows the court, in its discretion, to require the defendant to register as sex offender. When this happens, the defendant may not qualify for judicial diversion.
Example: David is charged with unlawful sexual intercourse (PC 261.5). The crime of unlawful sexual intercourse is not a crime for which sex offender registration is required. However, the district attorney has charged a PC 290.006 charge along with the PC 261.5 allegation, which means the defendant could face sex offender registration if found guilty of both criminal charges. Therefore, David does not qualify for diversion pursuant to PC 1001.95.
Judicial Discretion: Remember, whether the defendant is allowed to enter a judicial diversion program is up to the court. In other words, judicial diversion is not guaranteed. The defendant must petition the court to enter the PC 1001.95 judicial diversion program. The judge's decision as to whether the defendant should be allowed to enter judicial diversion depends on many factors, including the defendant’s criminal history, the ability of the defendant to complete the diversion program, the harm cause to the defendant’s victim(s), and more.
District Attorney Approval: The district attorney’s approval is not required for the defendant to enter judicial diversion (PC 1001.95(a)). Nevertheless, the defendant should consider working with the district attorney during plea bargaining in his effort to get the district attorney’s support for judicial diversion, or at least a “no-objection” position from the district attorney. This will make the application for judicial diversion more likely to succeed.
Example: David is charged with maintaining a brothel (PC 315). The district attorney does not approve of the defendant’s request to enter judicial diversion pursuant to PC 1001.95. Nevertheless, David may ask the judge to consider him for judicial diversion over the district attorney’s objection. However, if David can negotiate diversion terms that please the district attorney, then David’s application for diversion will more likely be approved by the court.
For more information on judicial diversion, of PC 1001.95, as it applies to California sex crimes, contact our sex crimes criminal defense attorneys today. Our award-winning attorneys handle felony and misdemeanor sex crimes in the IE, including lewd act on a child under 14 (PC 288(a)), possession of child pornography (PC 311.11), sexual battery (PC 243.4), rape by force or fear (PC 261), pandering (PC 266i), sodomy (PC 286), statutory rape (PC 261.5), oral copulation (PC 287), sexual penetration (PC 289), prostitution (PC 647(b)), and more. Call today!
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