How Does Misdemeanor Diversion Work in California? Penal Code 1001.95 Explained
The short answer: since January 1, 2021, a California judge can place a person charged with most misdemeanors into diversion under Penal Code section 1001.95 for up to 24 months, even if the prosecutor objects. You do not plead guilty. If you complete the terms the judge sets, the case is dismissed and the arrest is treated as though it never happened for most purposes. The statute excludes a short list of charges, including domestic battery, corporal injury to a spouse or partner, stalking, and offenses that require sex offender registration, and the courts have held that DUI is not eligible. This guide explains who qualifies, how the request is made, what the terms look like, and how diversion plays out at the Rancho Cucamonga courthouse, the Riverside Hall of Justice, the Long Beach and Torrance courthouses, and the Orange County justice centers.
What Is Judicial Diversion Under Penal Code 1001.95?
A judge-controlled pause. Diversion means the criminal case is suspended while you complete conditions, and then dismissed. Before 2021, most misdemeanor diversion in California required the prosecutor's consent, and prosecutors in Riverside County and San Bernardino County used that veto often. Penal Code section 1001.95 changed that by giving the judge, in the judge's discretion, the authority to offer diversion to a defendant charged with a misdemeanor over the prosecutor's objection. The prosecutor can argue against it, and often does, but the decision belongs to the court.
No guilty plea required. Unlike deferred entry of judgment or a treatment-based plea bargain, diversion under this statute does not require you to admit guilt or enter a plea first. That distinction matters for immigration, professional licensing, and employment, because a case that ends in diversion and dismissal never produces a conviction. Our guide on whether to take a plea deal explains why avoiding a plea is often worth more than a favorable sentence.
Up to 24 months. The statute allows the court to continue the case for a period not to exceed 24 months while you complete the terms. In practice, judges in the Inland Empire commonly set diversion for six to twelve months for simple cases and longer where a class or treatment program takes time to finish.
Who Qualifies for Misdemeanor Diversion?
Any misdemeanor not excluded. The starting point is that any misdemeanor is eligible unless the statute specifically excludes it. The court considers the facts of the offense, your record, and whether you are a good candidate, but there is no requirement that this be your first offense. Petty theft, shoplifting, vandalism, trespass, disorderly conduct, simple drug possession, resisting arrest, and many other common charges are routinely diverted. See our guides on shoplifting charges and drug possession under Health and Safety Code 11350 and 11377 for how diversion fits those cases.
Excluded offenses. Penal Code section 1001.95 does not apply to any offense for which a person would be required to register as a sex offender under Penal Code section 290, to domestic battery under Penal Code section 243, subdivision (e), to corporal injury on a spouse or intimate partner under Penal Code section 273.5, or to stalking under Penal Code section 646.9. Check the current text of the statute, because the Legislature can amend the exclusion list. For domestic violence cases, see our guide to domestic violence charges in Orange County.
DUI is not eligible. The statute does not list DUI by name, but Vehicle Code section 23640 separately bars diversion in cases charging driving under the influence, and the Court of Appeal held in Grassi v. Superior Court (2021) 73 Cal.App.5th 283 that the newer diversion statute did not override that bar. Our DUI guides cover whether you need a lawyer for a first DUI and how to fight a DUI in Riverside County.
Wobblers charged as misdemeanors. If a wobbler such as vandalism over the statutory threshold or a first-offense corporal injury is charged as a felony, judicial diversion is not available unless the charge is first reduced to a misdemeanor under Penal Code section 17, subdivision (b). Getting a felony reduced at the preliminary hearing stage and then requesting diversion is a common two-step strategy.
How to Request Diversion in Court
Raise it early. The request can be made at arraignment or at any pretrial conference. Judges respond best to a request supported by a short written motion or a letter brief with documentation: proof of enrollment in a relevant class or counseling, proof of restitution paid or a payment plan, character letters, employment or school records, and, where relevant, a treatment assessment. Presenting the court with a completed plan rather than a promise is the difference between a grant and a denial.
The judge weighs discretion. The statute gives the court discretion but does not list mandatory factors. In practice, judges at the Rancho Cucamonga courthouse, the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, and the Long Beach and Torrance courthouses consider the nature of the offense, harm to any victim, your record, whether you have already started addressing the underlying problem, and the prosecutor's reasons for objecting. A victim who opposes diversion is heard but does not control the outcome.
The prosecutor's objection. The District Attorney's offices in Riverside, San Bernardino, and Orange counties and the Los Angeles City Attorney have internal policies about which cases they oppose. Common objections are prior diversions, a victim with injuries, or a pattern of similar conduct. Your lawyer's job is to answer those objections with facts. In many cases, the objection is withdrawn once restitution is paid and a program is underway, and the case becomes a stipulated diversion instead of a contested one.
Compare the other diversion statutes. Mental health diversion under Penal Code section 1001.36 requires a qualifying diagnosis and a treatment plan but is available for many felonies as well as misdemeanors. Military diversion under Penal Code section 1001.80 applies to current and former service members with service-related trauma, substance abuse, or mental health conditions. Drug diversion under Penal Code section 1000 covers specified possession offenses. The right tool depends on the charge and the client, and more than one can be requested in the alternative.
What the Terms of Diversion Look Like
Terms tailored to the offense. The court may impose the terms, conditions, and programs it deems appropriate based on your specific situation. For a theft case that usually means restitution, a theft awareness class, and a stay-away order from the store. For vandalism it means restitution and sometimes community service. For simple drug possession it means an assessment and treatment or education. For a fight it means an anger management course and a no-contact order. Judges also commonly order that you obey all laws and appear for periodic progress reviews.
Restitution is mandatory. Penal Code section 1001.95 requires the court to order restitution to any victim as a condition, though inability to pay is not by itself a bar to diversion. Bring proof of payment or a documented payment plan to the hearing; it removes the most common objection.
Progress reviews. Most Inland Empire judges set a review date a few months into diversion and a final date near the end. Missing a review date is treated as a violation, so calendar them. Under Penal Code section 977, your lawyer can usually appear for you at misdemeanor review hearings so you do not miss work.
What happens if you fail. If you do not comply with the terms, are charged with a new offense, or otherwise violate diversion, the court holds a hearing and can terminate diversion and reinstate the criminal proceedings. You then go back to where the case was, usually a pretrial conference, and the prosecutor proceeds on the original charge. The evidence in the case is not affected by the diversion period, but the goodwill is. If you see a problem coming, such as a program you cannot afford or a schedule conflict, tell your lawyer before the review date so counsel can ask the court to modify the terms.
What Happens After You Complete Diversion
Dismissal. When the court finds you have complied, the charge is dismissed. The statute provides that the arrest upon which diversion was based shall be deemed to have never occurred, and you may answer that you were not arrested or diverted in most contexts, with exceptions that include applications for peace officer positions and certain licensing inquiries. Confirm the current wording of the statute and related record provisions with your lawyer.
Sealing the arrest record. After dismissal, the arrest record can be sealed. Penal Code section 851.91 allows a person whose arrest did not result in a conviction to petition to seal the arrest, and California's automatic relief provisions under Penal Code section 851.93 may seal eligible arrests without a petition. Ask about sealing at the dismissal hearing rather than months later. Our guide to expunging a criminal record in California covers the difference between sealing an arrest and dismissing a conviction under Penal Code section 1203.4.
Immigration. Because no plea is entered, a completed diversion under this statute generally does not create a conviction for immigration purposes. Noncitizens should still consult immigration counsel before accepting any terms that include an admission of facts, and defense counsel must advise on consequences under Penal Code section 1016.3.
Background checks. California's fair chance law in Government Code section 12952 restricts most employers from considering an arrest that did not result in a conviction, and state consumer reporting law limits what background check companies may report about such arrests. Bring the dismissal order and, once granted, the sealing order to any dispute with a background check company.
Common Mistakes That Cost People Diversion
Talking to the police first. A recorded admission at the scene makes the prosecutor's objection stronger and narrows the defense if diversion fails. Read our guides on what not to say to police and whether you can talk your way out of charges.
Pleading at arraignment. People who go to their first court date alone sometimes accept a plea offer that a diversion request would have beaten. A plea creates a conviction; diversion does not. See our guide to a first court date at the Van Nuys Courthouse and to arraignment in Riverside County.
Missing a review date. A bench warrant during diversion is the fastest way to lose it. Our guide to what happens if you miss court explains how to fix a missed date quickly.
Waiting to start the program. Judges reward defendants who have already enrolled in a class or paid restitution by the time the request is heard. Starting after the grant is allowed, but starting before it is persuasive.
Ignoring the family court side. A diverted domestic-related charge that is not on the excluded list, such as vandalism of a partner's property or a criminal threats count reduced to a misdemeanor, can still affect a custody case or a restraining order hearing. See our domestic violence restraining order page and our child custody page.
Frequently Asked Questions
Can a judge grant misdemeanor diversion if the prosecutor objects?
Yes. Penal Code section 1001.95 gives the judge discretion to offer diversion over the objection of the prosecuting attorney. The prosecutor is heard, and the judge weighs the objection, but the decision belongs to the court.
Which misdemeanors are not eligible for diversion in California?
Sex registration offenses, domestic battery, corporal injury, stalking, and DUI. The statute excludes offenses requiring registration under Penal Code section 290, domestic battery under Penal Code section 243, subdivision (e), corporal injury under Penal Code section 273.5, and stalking under Penal Code section 646.9. DUI is barred separately by Vehicle Code section 23640 as confirmed in Grassi v. Superior Court (2021) 73 Cal.App.5th 283.
Do I have to plead guilty to get diversion?
No. Judicial diversion under Penal Code section 1001.95 is granted without a plea. That is the main advantage over a treatment-based plea bargain, especially for noncitizens and licensed professionals.
How long does misdemeanor diversion last?
Up to 24 months. The court sets the length, and shorter periods are common when the terms are a class and restitution. The case is dismissed when the judge finds you completed the terms.
What happens if I violate diversion?
The court can end it and restart the case. After a hearing, the judge can terminate diversion and reinstate the criminal proceedings, and the prosecutor proceeds on the original charge. Small problems can often be fixed with a modification request if your lawyer raises them before the review date.
Does completed diversion show up on a background check?
It should not, once the arrest is sealed. The dismissal treats the arrest as never having occurred for most purposes, and the arrest record can be sealed under Penal Code section 851.91. Certain government and licensing applications are exceptions, so ask your lawyer before answering a specific question.
Gramling Law Group requests and litigates misdemeanor diversion at the Rancho Cucamonga, Fontana, and Victorville courthouses, the San Bernardino Justice Center, the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Long Beach, Torrance, and Van Nuys courthouses, and the Orange County justice centers in Santa Ana, Fullerton, Westminster, and Newport Beach, serving the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for diversion motions, arraignments, and pretrial hearings. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Gramling Law Group requests diversion in misdemeanor cases across Southern California. See our Rancho Cucamonga criminal defense page, our Riverside criminal defense page, our Long Beach criminal defense page, and our Inland Empire criminal defense guide.
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Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
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