On January 1, 2015, Los Angeles County will adopt a pilot program, effective until January 1, 2018 (its “sunset date”), wherein judges will have the discretion to offer diversion to misdemeanor offenders, over the objection of the prosecution, subject to several exceptions.
Why This Article Matters: Judicial diversion, although no longer available in Los Angeles County, was a program that other programs will model themselves after in the future in whole or in part, so it is valuable to understand how judicial diversion worked and what it offered.
Assembly Bill 2124 (AB 2124), passed by the State Assembly on May 28, 2014, was brought by Assembly Member Bonnie Lowenthal, a Democrat representing Long Beach. Her son is a judge in the Long Beach Superior Court. Ms. Lowenthal’s goal in her bill was to help predominantly first-time offenders who may have had a lapse in judgment, but who are not serious and future criminals, by allowing them to avoid a conviction on their record that may have long-term adverse consequences for employment, getting a loan, volunteering and even renting a place to live.
AB 2124 expands the discretion of judges to defer sentencing for up to twelve months for those who plead guilty or no contest to certain misdemeanors. This means no conviction will be entered for up to twelve months. When the person returns to court up to twelve months later, if he or she has completed certain obligations (i.e. community service, a class, written a letter of apology, paid restitution, etc.), the judge can then allow the defendant to withdraw his plea and the court can then dismiss the case. This means there would be no conviction and the stigma of a conviction that results.
Misdemeanors not eligible for this new program are DUI cases, sex offenses, violent offenses (including domestic violence), anyone having a prior conviction for any crime involving force and anyone offered diversion in the past.
This means petty theft (Penal Code § 484(a)), misdemeanor commercial burglary (Penal Code § 459), misdemeanor grand theft (Penal Code § 487), hit and run (Vehicle Code § 20002), public nuisance (Penal Code § 372), drunk in public (Penal Code § 647(f)), trespassing (Penal Code § 602) and disturbing the peace (Penal Code § 415) would presumably be eligible for such diversion, provided the defendant does not have a prior conviction for any crime involving force or the person has not been offered diversion in the past.
An important aspect of this new program is that it is at the judge’s discretion. This could mean that the defendant may need to persuade the judge why he or she should allow such an opportunity to the defendant. This may mean that the judge would welcome an attorney’s brief setting forth why judicial discretion should be exercised in the defendant’s favor.
The program would authorize the judge to specify conditions of diversion, which could be quite tough. After all, diversion is a good deal, but the judge can make the defendant work hard for the benefit.
Orange, Riverside, San Bernardino and Ventura County will not enjoy such a program, raising equal protection issues as to defendants who commit the same offenses in these counties, but are not offered diversion as AB 2124 permits. We anticipate that the other counties will, in time, develop similar programs, however.
We at Greg Hill & Associates welcome AB 2124 as a great way to allow first time offenders a way to avoid the stigma of a criminal conviction and the adverse employment consequences. However, the individual may have to attend classes and / or perform community service, which will educate the individual and can help the community in general.
This program is also a practical way for courts to reduce the number of court appearances in a case, which will allow prosecutors to spend more quality time on the cases that remain in court, most notably DUI’s and misdemeanor sex offenses. Such cases can be quite fact specific and, we find, are commonly given inadequate time. AB 2124 may change this. This will benefit not only those offered diversion, but those whose cases are not.
For more information about the issues in this article, click on the following articles:
- What Is Diversion, Delayed Entry of Plea and Deferred Entry of Judgment?
- What Punishment Do I Face for Shoplifting?
- What Punishment Do I Face For Possession of Marijuana?