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Pretrial Diversion May No Longer Available on The Day of Trial

Under the terms of a Pretrial Diversion program, criminal charges are usually dismissed following the successful completion of a therapeutic program. Last week in People v. Anderson, the Appellate Court in the Superior court of California for the County of San Francisco held that all pretrial offers, including a diversion program, expire on the first day of trial unless extraordinary circumstances are present. Once matters have been sent out for trial, the matter must proceed to trial.

The court reasoned that a pretrial diversion involves a procedure for postponing prosecuting an offense at any point in the judicial process from the point at which the accused is charged of the offenses until adjudication. As the statute for pretrial diversion requires that diversion is evaluated before a trial is “contemplated,” individuals in diversion programs cannot be considered “awaiting trial” since a trial cannot be contemplated until successful completion of the program.

The court emphasized that the expiration of all offers on the day of trial barring extraordinary circumstances promotes the court’s inherent power to conduct business in an orderly and efficient fashion. Policies to ensure that the best sentencing deals are available early in a case relieve the criminal courts of further congestion of any minor prosecutions.

As the Appellant in Anderson rejected pretrial diversion when it was first offered and then attempted to resurrect the offer on the first day of trial, the court concluded that the court was under no obligation to require diversion offered again on the day of trial.


Scott Hughes is a criminal defense lawyer in Orange County, California practicing in State and Federal Court.

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