What Is Judicial Diversion—and Can I Still Get It If the Prosecutor Says No?
If you’re facing misdemeanor charges in California, you may have heard of diversion as a way to avoid a criminal conviction. But what if the prosecutor refuses to offer it? Can you still qualify?
Thanks to California Penal Code § 1001.95, the answer is yes. In fact, judicial diversion allows judges to grant diversion over the prosecutor’s objection—making it a powerful tool for rehabilitation and second chances. At Couzens Criminal Defense we have helped multiple clients secure judicial diversion to avoid a conviction in misdemeanor cases. Here are two examples:
In Example 1, the Client was driving a motorcycle at high speed and briefly evaded a police officer. The client was charged with a felony and, because of a prior conviction, was ineligible for probation (a prison sentence was mandatory here). We persuaded a Court to first reduce the felony to a misdemeanor at one hearing (which qualified the client for judicial diversion), then filed a motion for judicial diversion in a second proceeding, which was granted.
In Example 2, the client and her husband got in an argument in which the police intervened and the Client resisted the police without violence. In this case, the prosecutor agreed that the case (filed as a felony) should be reduced to a misdemeanor, again qualifying the Client for judicial diversion, which was granted in a second proceeding.
Here’s what you need to know about judicial diversion, how it differs from other diversion programs, and the legal authority that allows the court to act—even when the District Attorney disagrees.
What Is Diversion?
In criminal cases, diversion is a process that allows certain cases to be paused so a defendant can complete a program—such as counseling, classes, community service, or treatment. If the program is completed successfully, the charges are dismissed, and the arrest is deemed never to have occurred.
Diversion avoids a criminal conviction and helps individuals maintain employment, housing, and licensing eligibility.
Types of Diversion in California
There are multiple types of diversion under California law. Each has different eligibility criteria:
Pretrial Mental Health Diversion (Penal Code § 1001.36) – For individuals whose mental illness was a significant factor in the charged offense.
Pretrial Drug Diversion (Penal Code § 1000) – For certain nonviolent drug offenses.
Military Diversion (Penal Code § 1001.80) – For veterans or active duty military members with PTSD, substance abuse, or mental health issues.
Judicial Diversion (Penal Code § 1001.95) – Available at the judge’s discretion for most misdemeanors, regardless of the prosecutor’s position.
Each program has its own structure, but judicial diversion stands out for one major reason: it gives judges the power to act independently of the prosecution.
What Is Judicial Diversion?
Enacted in 2021, Penal Code § 1001.95 created a new pathway for diversion in misdemeanor cases:
“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.”
— Penal Code § 1001.95(a)
Because judicial diversion is only available for misdemeanors, this means either (1) your case must charge misdemeanors, or (2) the case charges felonies that must first be reduced to misdemeanors to qualify for the diversion. Under this law:
The case can be diverted for up to 24 months;
The judge may impose any terms, conditions, or programs deemed appropriate;
If completed successfully, the case is dismissed and the arrest treated as if it never occurred under Penal Code § 1001.97;
If the defendant fails, the case resumes as if diversion never happened.
This means a defendant gets a true second chance—even if the prosecution disagrees.
Why the Law Gives Judges This Power
California law recognizes that rehabilitation and justice are not always served by rigid or punitive outcomes. Judicial diversion reflects a shift toward personalized justice that accounts for individual progress, remorse, and community contribution.
The Legislature specifically authorized judges to grant diversion without the prosecutor’s agreement, reflecting the understanding that the court system needs flexibility—especially in misdemeanor cases where jail time, stigma, or collateral consequences may far outweigh the benefit of prosecution.
As the court in People v. Braden (2021) 63 Cal.App.5th 330 explained in upholding judicial discretion in diversion matters:
“The plain language of section 1001.95 gives the court the authority to grant diversion over the objection of the prosecuting attorney... The Legislature vested that discretion in the trial courts.”
Why Judicial Diversion Matters
Judicial diversion empowers judges to:
Evaluate the whole person, not just the offense;
Encourage accountability and self-improvement;
Avoid unnecessary convictions for people who would benefit more from treatment than punishment;
Protect public safety by requiring compliance with structured conditions, while giving defendants the motivation to succeed.
If the defendant fails the program, there is no downside to the public—the case proceeds as normal. But if the defendant succeeds, society benefits from their rehabilitation, reduced recidivism, and continued employment and contribution.
Examples of Judicial Diversion Conditions
Judicial diversion programs can include:
Drug or alcohol counseling
Mental health treatment
Community service
Educational programs
Victim restitution
Stay-away orders
Court monitoring and progress reports
These terms are fully customizable to the defendant’s needs and circumstances, giving courts enormous flexibility to support real change.
Final Thoughts: Don’t Give Up If the DA Says “No”
Prosecutors don’t have the final say when it comes to judicial diversion. If you’re facing misdemeanor charges, you still have the right to ask the court directly for this opportunity—especially if you’ve shown remorse, taken responsibility, or already begun a path of personal growth.
At Couzens Criminal Defense, we’ve helped clients secure judicial diversion, even when the prosecutor refused to offer it. We understand how to present the strongest possible motion to the court, with supporting documents, legal authority, and a plan that ensures success.
Couzens Criminal Defense | Roseville, CA
📞 (916) 603-2000 – Call for a free consultation.
