New primary caregiver diversion law SB 394

Newsom signed SB 394 into law and it is amazing. It allows for diversion for misdemeanors AND/OR non serious/nonviolent felonies if your client is a primary caregiver of a child.

There is a strong argument that this law should apply to people already convicted/who have already pled.

The law is similar, but not identical, to the mental health diversion law (PC 1001.36.) The California Supreme Court (in the lead case Frahs) is currently reviewing whether that law would apply to people who are already convicted of a crime, and a number of appellate courts have held that 1001.36 applies to people who have already pled. (Although there is a split in authority.)

Presumably, if the Supremes hold that people already convicted are eligible for mental health diversion, we have a fair shot at getting people diversion under SB 394 even if they have already pled. (Note, this would not apply to anyone whose cases/appeals are long over.)

There is some ambiguity over when and where this diversion program will begin. The law should be effective Jan 1, 2020.. But the statute says that the court, the DA and the criminal defense bar may create a primary caregiver diversion program. (PC 1001.83(a.)) So does that mean that a county can just say “we don’t do that here?” (True story: a court who shall remain nameless told me that their branch “did not do” PC 1000, even though all other courts in the county did it. 🤔). Remains to be seen.

See SB 394.

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