Criminal Defense

Assembly Bill 3234 – Your “Get Out of Jail Free” Card

April 27, 2021 by Mikel Rastegar in Criminal Defense  Rights  
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1. What is AB 3234?

AB 3234- Get out of Jail for free. Get your Misdemeanor Case Dismissed Under this new Misdemeanor Diversion Law of 2021.

AB 3234 originated from a pilot program in Los Angeles County in 2019 which allowed Judge’s to dismiss cases in their discretion. In 2021, this new California law, following the Los Angeles pilot program, dramatically expands the ability of a Judge to dismiss your misdemeanor case in California by a process called “diversion”. This law is codified in Penal Code section 1001.95(a) – (e) which states in pertinent part:

“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.”

2. How does it Work?

Newsom Signs Assembly Bill 1950

Any person who is charged with a misdemeanor crime in California is eligible for this diversion program (with some notable exceptions as stated in section 3 below). Diversion just means that the Judge can dismiss your case on his or her own, but can first make you do stuff, such as community labor, counseling, restitution, etc. prior to dismissing your case. The great thing is that, unlike a formal diversion where you plead guilty and your guilty plea is later withdrawn before your case is dismissed, in this AB 3234 diversion, the words “guilty” or “no-content” never escape your lips since in this type of diversion your case is dismissed “informally.” For those defendants who are not citizens, this type of diversion will help for immigration purposes too because even formal diversion that leads to dismissal after a guilty plea is entered and then withdrawn can hurt your changes in immigration court, whereas this type of informal diversion cannot. The Judge simply postpones the case for the time she or he sees fits (if any), and allows you to perform terms and conditions as she or he sees fits (if any), and then dismisses your case.

You will also have to make restitution to the victim, if any, as part of the diversion, but your failure to do so if you can’t afford it will not bar diversion in your case.

If you fail to satisfy the requirements of the Court, the Judge can end the diversion program, but even then you would have the opportunity to continue to fight your case!

Diversion existed before AB 3234, but only in limited circumstances such as mental health diversion under PC 1001.36.

For those charged with misdemeanors, this statute is like chocolate ice cream. But there’s even a cherry on top: once your case is dismissed, even the arrest will be removed from your record as if it never happened! You can legally tell schools, jobs or anyone else that you have not been arrested, with the one exception that if you’re applying to be a police officer you still have to disclose it.

AB 3234 is not limited to first time misdemeanors either and can technically be used more than once, though practically speaking most Judges may not grant diversion if it has previously been granted.

3. What crimes are excluded?

PC 1001.95 excludes only certain misdemeanor crimes from diversion. The following crimes are not eligible for AB 3234 diversion:

  1. Domestic violence under PC 273.5 or 243(e)
  2. Any misdemeanor offense that requires registration under PC 290, such as sexual battery under PC 243.4(e)
  3. (3) A charge of stalking under PC 646.9

Even DUI under VC 23152(a) and VC 23152(b) cases are eligible for diversion and dismissal under AB 3234. However, many groups oppose this and Governor Newsom had indicated that he will change this at his first opportunity.

4. How can I take advantage of this law?

Effectively persuading the Judge to grant diversion entails presenting a 3-dimensional, multi-faceted profile of the defendant that helps the Judge “feel” you. The Judge will have to be persuaded that the defendant’s conduct can somehow be excused based on, for instance, unusual circumstances, the defendant’s history and background, or other mitigating circumstance. It would also help to show that this is unlikely to happen again, and that defendant has experienced remorse and has good character, and is moving forward productively with his or her life.

Since the Judge is not required to give diversion, and it is entirely within his or her discretion, effective representation for you is essential.

Contact a California Criminal Defense Attorney

If you are dealing with the fallout and legal ramifications stemming from a a criminal change, don’t fret, call us. You can count on the expert team at Esfandi Law Group to help you navigate the complex process.

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