San Francisco Criminal Lawyer BlogA defendant charged with misdemeanor vehicular manslaughter is eligible for misdemeanor diversion
Bobo v. Appellate Division of Superior Court of San Diego County (Cal. Ct. App., Apr. 22, 2026, No. D087393) 2026 WL 1102519, at *1
Summary: Bobo was charged with misdemeanor vehicular manslaughter (Pen. Code, § 192, subd. (c)(2)) after running a red light, colliding with another vehicle, and killing the other driver. She requested misdemeanor diversion before trial under section 1001.95. The trial court found Bobo eligible for misdemeanor diversion but not suitable on the ground that her negligent conduct caused the death of another person. Bobo filed a petition for writ of mandate in the appellate division of superior court. The appellate division denied the petition. She then filed another petition for writ of mandate in the Court of Appeal challenging the appellate division’s ruling. The Court issued an order to show cause and concluded Bobo was entitled to relief. A defendant charged with misdemeanor vehicular manslaughter is eligible for misdemeanor diversion because it is not one of the excluded offenses specifically listed in the statute. (§ 1001.95, subd. (e).)
By relying solely on facts inherent in the qualifying offense and failing to connect them to the underlying purposes of the misdemeanor diversion statute, the trial court abused its discretion in deciding Bobo was not suitable for diversion. Bobo also demonstrated the absence of an adequate legal remedy and irreparable harm if relief were denied. The Court issued a writ of mandate directing the appellate division to vacate its order summarily denying Bobo’s petition for writ of mandate and issue a new order (1) issuing a peremptory writ in the first instance, and (2) directing the superior court to vacate its order denying misdemeanor diversion and reconsider Bobo’s suitability in conformity with the views expressed in this opinion.
Facts: Bobo was charged with misdemeanor vehicular manslaughter. (Pen. Code, § 192, subd. (c)(2).) Before trial, Bobo filed an “invitation” for the court to grant misdemeanor diversion under section 1001.95, with multiple supporting character references and attached family photos. She argued she was eligible for diversion because the charged crime was not one of the specifically excluded offenses.
Bobo requested diversion for a period of 18 months on the following conditions: (1) she complete an in-person traffic course; (2) she complete 150 hours of volunteer service; (3) she write a letter to the victim’s family; (4) payment of restitution be reserved; (5) she remain law-abiding and “not pick up any new criminal cases”; and (6) any other terms the court deemed appropriate.
The People opposed the diversion request. They asserted the “circumstances of this offense as well as (the victims’) family’s strong opposition to diversion” supported denial. The People argued the court should weigh the “societal interests in prosecuting this conduct, protection of the public, and the wishes of (the victim’s) family.”
The court held a hearing on the request for diversion and ruled that Bobo “was not suitable for diversion, although she is eligible[,] given the severe consequences that resulted from her decision to … run a red light, which resulted in death.”
Standard of Review
The appellate division’s denial of writ relief is not appealable but is subject to discretionary review by way of a petition for writ of mandate in this court. (Code Civ. Proc., § 904.3 [“An appeal shall not be taken from a judgment of the appellate division of a superior court granting or denying a petition for issuance of a writ of mandamus or prohibition directed to the superior court, or a judge thereof, in a limited civil case or a misdemeanor or infraction case. An appellate court may, in its discretion, upon petition for extraordinary writ, review the judgment.”].)
The appellate division’s denial of writ relief is reviewed for abuse of discretion.
The Trial Court Abused its Discretion in Denying Misdemeanor Diversion
Bobo argues the trial court abused its discretion by denying misdemeanor diversion under section 1001.95.
Statutory Background to Misdemeanor pretrial diversion
Effective January 1, 2021, the Legislature enacted a new form of misdemeanor pretrial diversion by adding sections 1001.95 to 1001.97 to the Penal Code. Section 1001.95, subdivision (a) provides: “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.” Subdivision (b) states: “A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.”
The statute specifies several charged offenses that are excluded from the diversion program: registrable sex offenses (Pen. Code, § 290), certain domestic violence offenses (Pen. Code, § 13700; Fam. Code, § 6211) and stalking (Pen. Code, § 646.9). (Pen. Code, § 1001.95, subd. (e).) Misdemeanor vehicular manslaughter (Pen. Code, § 192, subd. (c)(2)) is not one of the excluded offenses.
A defendant who is diverted under this program must complete all conditions ordered by the court, make full restitution unless indigent, and comply with any protective order, stay-away order, or order prohibiting firearm possession. (§ 1001.96.) “If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.” (§ 1001.95, subd. (c).) If the defendant does not comply, the court may “end the diversion and order resumption of the criminal proceedings.” (Id., subd. (d).)
“Upon successful completion of the terms, conditions, or programs ordered by the court pursuant to Section 1001.95, the arrest upon which diversion was imposed shall be deemed to have never occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest for successful completion of the terms, conditions, or programs ordered by the court shall not, without the defendant’s consent, be used in any way that could result in a denial of any employment, benefit, license, or certificate.” (§ 1001.97, subd. (a).) However, an exception to this provision requires disclosure of the arrest in response to a direct question in an application for a position as a peace officer. (Id., subd. (b).)
“The Legislature’s purpose in enacting section 1001.95 was to treat, restore, and rehabilitate.
Before this new law went into effect in 2021, misdemeanor diversion could only be granted with the approval of the prosecution. (§ 1001.2, subd. (b).) The Legislature intended to eliminate this approval requirement.
Standard of Review for Denial of Misdemeanor Diversion
A trial court’s denial of pretrial diversion is reviewed for abuse of discretion. (Wade v. Superior Court (2019) 33 Cal.App.5th 694, 708, 245 Cal.Rptr.3d 435 (Wade).) “It is commonly said that a trial court abuses its discretion when it ‘ “exceeds the bounds of reason, all of the circumstances before it being considered” ’ or its decision is ‘so irrational or arbitrary that no reasonable person could agree with it.’
“Where the source of discretion is statutory, we measure the trial court’s exercise of judicial discretion ‘against the general rules of law and … against the specific law that grants the discretion.’ ” (Id. at p. 709, 245 Cal.Rptr.3d 435.)
Analysis of Trial Court’s Denial of Misdemeanor Diversion
Bobo argues that the trial court abused its discretion by relying solely on the circumstances of the offense to deny diversion, rather than analyzing her suitability for treatment and rehabilitation. She contends the trial court’s ruling was contrary to the Legislature’s purpose in making misdemeanor vehicular manslaughter a qualifying offense for misdemeanor diversion. The Court agreed the trial court abused its discretion by relying solely on facts inherent in Bobo’s commission of the charged offense without connecting them to the underlying principles and purpose of the misdemeanor diversion statute.
The trial court also failed to link the facts of the charged offense to the aims of the statute. The court made no connection between the victim’s death from Bobo’s negligent driving and the goals of the misdemeanor diversion statute: to treat, restore, and rehabilitate the defendant; prevent the trauma, family harm, and other collateral consequences of a criminal prosecution, conviction, and incarceration; achieve lower recidivism rates; promote racial justice; and decrease the cost of traditional criminal proceedings while increasing accountability through rehabilitative programming. The trial court abused its discretion by denying diversion based solely on facts inherent in the charged crime without connecting those circumstances to the purposes of the statute.
Requiring Bobo to wait until an appeal from a final judgment of conviction to challenge the erroneous order denying pretrial diversion would deprive her of the intended benefits of the misdemeanor diversion statute by forcing her to undergo criminal prosecution and a possible conviction and jail sentence, with the associated trauma and other collateral consequences the diversion law was designed to prevent. Time and resources would be consumed conducting trial and sentencing proceedings, followed by an appeal, all of which would be avoided through successful diversion. Bobo has demonstrated the absence of an adequate remedy by way of appeal. There being “no other plain, speedy, and adequate remedy in the ordinary course of law, the court ‘must’ issue the writ.”,
The Court issued a writ of mandate directing the appellate division to vacate its order summarily denying Bobo’s petition for writ of mandate and enter a new order (1) issuing a peremptory writ in the first instance, and (2) directing the superior court to vacate its order denying misdemeanor diversion and reconsider Bobo’s suitability in conformity with the views expressed in this opinion.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.