Pretrial diversion is a procedure whereby the prosecution of a misdemeanor is either temporarily or permanently postponed. [PC §§1001.1, 1001.50(c), 1001.51.]
A defendant must meet the following conditions to be eligible for diversion [PC §1001.51(a)(1)–(3)]:
- The defendant cannot have had probation or parole revoked in the past, without later being completed,
- The defendant cannot have been diverted within five years before the charges in the present case,
- The defendant cannot have been convicted of a felony, and
- The defendant cannot have had any misdemeanor convictions five years before the current charges.
Although counties develop their own eligibility guidelines for diversion programs, defendants charged with certain misdemeanors, such as drunk driving, sex offenses, and crimes involving violence, are categorically excluded from diversion. [PC §1001.51(b)–(c).]
Reinstating the Criminal Proceedings
Once the defendant has begun a misdemeanor diversion program, you may terminate it and reinstate criminal proceedings if, after notice to the defendant and a hearing on the matter, you determine that [PC §1001.54; Kramer v Municipal Court (1975) 49 CA 3d 418, 424]
- the defendant is not performing satisfactorily in or benefiting from the assigned program, as per the opinion of the probation department,
- the defendant is convicted of a misdemeanor involving the use of force or violence, or
- the defendant is convicted of a felony.
For more information on these programs, see CJER Benchguide 62—Deferred Entry of Judgment/Diversion.