A Second Chance: Navigating California’s Criminal Diversion Programs

If you or someone you know has been accused of a crime, particularly for a first-time or low-level offense, it is crucial to be aware that California offers various pathways to be diverted from traditional criminal prosecution. The result can be a complete dismissal of charges. These pathways are commonly known as “diversion programs.”

Diversion programs offer a second chance. For an individual facing eligible criminal charges, it is an opportunity to earn a dismissal and avoid conviction, fines, and potential jail time. These programs often seek to educate or treat the root causes of criminal behavior. A dismissal has benefits beyond clearing one’s record, allowing a person to move forward without the stain of a conviction. This is critical for future employment, professional licensing, and general reputation.

To earn a dismissal, diversion programs often require programming, class, community service, or a rehabilitative component. An individual must meet all requirements before their matter is dismissed. Not all diversion programs are the same, however. Different versions exist with varied eligibility requirements. These diversion programs are not always automatic either. Some may require convincing the prosecution or judge that a charged individual merits this type of relief. This may mean presenting evidence and records for consideration. 

An experienced white collar criminal defense attorney can help you navigate the right pathway and meet diversion program requirements to ensure a swift and successful dismissal. It is critical to be proactive to get into the right program at the right time; otherwise, the option of an early dismissal may be foreclosed. So don’t let delays and mistakes impair your chances of these programs. Having an attorney help manage or facilitate this process is important and can even open up programs unavailable otherwise, without taking certain steps in preparation for speaking to the prosecution or judge. 

Types of Diversion in California

The landscape of criminal diversion in California is multifaceted, offering several avenues for relief depending on the charge, stage of the criminal proceedings, and the individual’s circumstances, background, and history. Understanding this landscape is the first step towards determining eligibility. Below is information to help you better understand the nuances of the available diversion programs:

• Pre-Filing Diversion: A prosecution-initiated pathway offered to an individual in lieu of formal charges being filed. The prosecution office, or one of its programming partners, typically reaches out to an individual within the first year after initial contact with the police. Strict deadlines must be followed by the imposed deadline. Once the program is completed successfully, the District Attorney’s Office does not file charges against you. 

• Judicial Diversion: A judge-led discretionary process for certain misdemeanors available after formal charges have been filed. It is important to present a strong case for judicial diversion early in a case since courts and prosecutors often look for early accountability. While this program does not require the prosecution’s agreement, it is helpful if the prosecution either agrees or does not object. Successfully completing the program and terms results in dismissal of charges against you. (Cal. Penal Code § 1001.95)

• Pre-Trial Diversion: A prosecution referral-based program under Penal Code § 1001.1 et seq. for certain misdemeanors after formal charges have been filed, subject to predetermined eligibility requirements. 

• “D.A. DEJ” (Informal Deferred Entry of Judgment): A negotiated agreement after formal charges have been filed where an individual enters a guilty or no contest plea, performs specific requirements and programs and, upon successful completion, the plea is withdrawn and the matter dismissed at the time of sentencing.

• Transitional Age Youth Diversion Programs: A prosecution-based pilot program only available in certain counties in California, each with its own unique set of requirements and serves as a pathway for youthful offenders, who are (i) between 18 to 25 years old (ii) charged with nonviolent felonies, and (iii) found suitable. This program aims generally to seek treatment more akin to juvenile court based programming or other educational components for dismissal. 
• Other Specialized Diversion Programs: Tailored diversion programs also exist for active military members and veterans (Penal Code § 1001.80), individuals with mental health disorders (Penal Code § 1001.36), and those with substance abuse issues (Penal Code § 1000), and certain felonies may also be eligible for dismissal under these programs. 

The Pros and Cons of Diversion Programs

While diversion presents a powerful alternative to sustaining a conviction on one’s record, it is essential to consult with an attorney early to weigh the benefits against the potential drawbacks, including a thorough analysis of the charges and evidence. Doing so early provides you with the most options, allowing you time to make well-informed decisions. 

What are the benefits of a diversion program?

• Avoidance of a Criminal Conviction: The primary benefit is earning a dismissal, which prevents a conviction from appearing on your permanent record. 

• No Formal Charges (Pre-Filing Program): Pre-filing diversion means no case is ever formally initiated in court, and thus potentially avoids public court dockets and documents.

• Focus on Rehabilitation or Education: These programs seek to educate or to address underlying issues like mental health or substance abuse, reducing the likelihood of future offenses.

• Preservation of Future Opportunities: A clean record is invaluable for employment, professional licensing, housing, immigration, visa status, and educational prospects.

What are the drawbacks?

• Admission of Wrongdoing: Some programs may require an admission of guilt, which can have collateral consequences, particularly regarding immigration and visa status; therefore, consulting with an attorney is critical.

• Inconsistent Requirements: Program availability and eligibility vary significantly from county to county, creating a lack of uniformity.

• Risks of Failing Programs: If you fail to complete the program’s strict requirements, the original criminal proceedings are reinstated and you face the initial charges, often from a weaker position than you otherwise would have, such as if you had already entered a guilty plea.

• Potential for More Serious Charges: Accepting diversion does not grant absolute dismissal. If the state, after exercising due diligence initially, 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.  
• Innocence: Not all mistakes are criminal, and sometimes the government gets it wrong. Diversion programs, while beneficial, foreclose an individual’s ability to challenge the government’s case and charges. 

The Importance of Having A White Collar Criminal Defense Lawyer on Your Side

The path through California’s criminal justice system is complex, and diversion programs add another layer of strategic considerations. While options exist, they are not always straightforward. A criminal defense attorney can, for example, assess whether a felony charge may be eligible for reduction to a misdemeanor under Penal Code § 17(b), thereby opening the door to diversion; or, advise you on the best course of action to take prior to the first appearance in court.

It’s important to reach out to an attorney as early as possible, even before any charges are filed. A skilled lawyer makes sure your rights are protected every step of the way and can help you understand the process after an arrest, detention, or following contact with law enforcement where you received a citation to appear in court.  

It is best to consult with a knowledgeable attorney to address the availability of diversion programs in the county where you were charged, assess your eligibility, and advocate on your behalf with the prosecution and judge. While simple on the surface, these programs have nuances that an experienced lawyer can help you navigate to secure the best possible outcome for your situation.

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.