Deeper Dive: Pre-Filing Diversion

The threat of criminal charges can feel overwhelming. The good news is that, in California, you may have options beyond conviction, fines, and potential jail time. California offers several diversion programs designed to give eligible individuals a second chance. In a previous article about California Criminal Diversion Programs, we gave an overview of available diversion programs. These programs focus on treatment, education, and accountability instead of punishment. 

Avoiding Charges Before They’re Filed

This article focuses on one of those programs known as “Pre-Filing Diversion” in California. It is a great option for individuals with first time mistakes and low-level offenses because it avoids the filing of charges by the government all together. 

Unlike other diversion programs, however, Pre-Filing Diversion is only available in some counties. Each program is county specific, meaning the program requirements may vary. The programming requirements are designed by the respective county’s District Attorney Office. It is important to research and learn the availability of such programs before navigating them. 

What Is Pre-Filing Diversion?

After an individual is arrested or given a citation for a criminal offense, the government usually reviews the police report to decide whether to file formal charges against that person. Pre-Filing Diversion allows for a non-prosecution alternative before such charges are filed. 

A pre-filing diversion program operates as an early offer from the prosecution that allows an individual accused of a crime—who would otherwise likely be charged—to participate in and complete specific programming before charges are ever filed. If the individual successfully completes the program, the District Attorney’s Office commonly agrees that formal charges will not be filed. This helps an individual avoid charges. There is no court appearance or other hearing.

Accepting diversion does not grant absolute protection against future prosecution and filed charges, however. If the prosecution exercised due diligence initially but later discovers evidence of more serious charges from the same conduct, it may still file a felony. See People v. Davis, 36 Cal. 4th 510 (2005); Cal. Penal Code § 654. Consulting with an attorney is important to assess potential criminal charges, evidence, and defenses. 

These pre-filing diversion programs are not compulsory, and the District Attorney’s Office maintains control over a defendant’s eligibility to participate. They may consider, for example, the nature of the offense and the individual’s prior criminal history. Moreover, some programs may require a person to admit to circumstances or facts underlining the alleged offense, which can carry with it significant consequences, especially for those facing immigration issues. 

How Does Pre-Filing Diversion Work? 

Even though the details vary by county due to different prosecution offices, many of the pre-filing diversion programs typically require a combination of:

• Community service hours 
• Counseling or education classes (such as theft awareness, anger management)
• Restitution or repayment to victims
• Remain crime free for a period of time

The result, upon successfully fulfilling the program requirement, is the same: the prosecution closes the file and does not charge a criminal complaint against the person. The benefits are:

• No Criminal Charges Filed: Avoiding court altogether means no criminal court case or docket number appears on your record.
• Privacy: Because charges were never filed, there’s no public court record.
• Reduced Stress: You face less time in court and face the uncertainty of a drawn-out criminal process, including stress of a jury trial.
• Second Chance: The long-term impact of a criminal conviction is removed and gives you a fresh start. 

Why Legal Help Is Critical

Pre-filing diversion isn’t automatic. Prosecutors have discretion, and eligibility depends on the type of offense, your background, and local prosecution policies. 

Remember, time is not on your side. After an arrest or receiving a criminal citation, this process can move quickly. Securing experienced criminal defense counsel at the earliest possible stage can be the critical factor in persuading the prosecution not to file charges, rather than subjecting you to formal criminal prosecution and the attendant risk of a permanent criminal record. 

George Tran

George Tran is an experienced trial lawyer with a proven record of success in high-stakes litigation and government investigations. As a former prosecutor with the U.S. Department of Justice and Santa Clara County District Attorney’s Office, he has led scores of complex criminal investigations into fraud, embezzlement, money laundering, tax evasion, and public corruption. He has tried over 30 cases to verdict in federal and state courts across the country and brings substantial experience navigating courtroom proceedings. Learn more here.