THE POTENTIAL IMPACT OF THE NEW “COURT” MISDEMEANOR DIVERSION PROGRAM ON CRIMINAL DEFENSE CASES IN TORRANCE: A LOCAL PERSPECTIVE
Much has already been written about the recent enactment of a new “pilot program” for misdemeanor diversion here in Los Angeles County, codified in Penal Code section 1001.94 et seq. The short, summary version of the change in the law is this: up until now, a judge technically had no power to offer “diversion” to a defendant. If the prosecution didn’t want to offer diversion, the defendant couldn’t get it (except for in drug related cases).
Now, certain people who are accused of misdemeanors can ask the judge to simply cut the prosecutor out of the loop and make a diversion deal directly with the defense. Of course, not everyone is eligible for this kind of diversion; for example, it doesn’t apply to
- domestic violence offenses,
- drunk driving offenses,
- or participation in a criminal street gang,
- and it isn’t available to anyone with a prior misdemeanor offense within the past ten years.
(That is not an exhaustive list. Penal Code section 1001.98 lists all of the exceptions.)
As this program begins to be implemented, however, I’d like to note that it may have a very significant impact on how all misdemeanor cases play out here in the Torrance branch of the Superior Court (and other Los Angeles County criminal courts.) As I’ve discussed in previous video blogs, the Torrance court is somewhat unusual within L.A. County, in that it has several prosecuting agencies which handle misdemeanor cases only for their specific city. In Los Angeles proper, the Los Angeles City Attorney handles misdemeanors and the District Attorney handles felonies. Here, there are several smaller cities which have their own misdemeanor prosecutors.
The question becomes: how will it affect this multitude of smaller agencies when, in a substantial number of their cases, a judge can simply cut the prosecution out of the bargaining process and deal directly with a defendant?
Now, in any number of cases, the agency which filed the misdemeanor charges will potentially have no role in deciding what a defendant has to do in order to get a diversion of the case. Again, this won’t affect all cases, but it affects enough of them that it could seriously impact the relationship between the bench (judges), the prosecution, and local criminal defense attorneys.
It’s certainly too early to report on what impact, if any, this is having. It’s also foolish to speculate as to what is ultimately going to happen as a result of this program. I would, however, offer the following thoughts about factors that will have an impact on how this plays out:
- The prosecution will still get to control if a defendant gets an “informal” diversion offer. The difference between “informal” and “formal” diversion relates to whether the defendant has to enter a plea of no contest to the charge before getting diversion, or can simply put the case off for a few months and then get it dismissed. For the average defendant, this difference is just a formality, and doesn’t affect him or her at all. But for others—particularly those who are not full citizens of the United States—this is a hugely important distinction. Will these smaller agencies even continue to make informal diversion offers? Will that be a “carrot” or a “stick” in negotiations with defense attorneys? That remains to be seen.
- If a prosecuting agency only handles misdemeanors—as many here in Torrance do—and they don’t like the way a judge utilizes the new authority of Penal Code section 1001.94, what will they do about it? What kind of pressure can they exert? How will this affect the relationships between the judges in the courthouse and the prosecuting agencies?
- Are judges going to be extremely strict about compliance with diversion programs, and what consequences will they impose if someone fails to get everything done? This will certainly impact how local defense attorneys advise their clients. Are there going to be situations where it makes more sense to deal directly with the prosecution than to take advantage of the program? That remains to be seen.
Knowledgeable Misdemeanors Attorney
Again, it’s unclear how all of this will play out. For now, be aware that if you are looking to hire an attorney to represent you in a misdemeanor case, it is important that he or she is paying attention to this shifting dynamic going forward. This program could cause a significant shift in the local, “on the ground” realities of handling misdemeanor accusations here in the Torrance court. It may not—sometimes these things wind up being much ado about nothing—but you should ensure any attorney you hire is aware of the issues and makes strategic decisions accordingly.
As always, if you or your loved one is facing a criminal case of any sort here in the Torrance courthouse, please feel free to call our office at (310)-633-4612 for a free consultation.