Can You Apply for Probation Before Conviction in California Non-Violent Felonies?

Question from Bey, Can You Apply for Probation Before Conviction in California Non-Violent Felonies?

Answer from AI:

How Pre‑Conviction Relief Works in California

In California, probation itself is a sentence that is imposed after a conviction. You cannot “apply for probation” before a court has found you guilty. However, the state does provide pre‑conviction diversion programs that allow certain defendants charged with non‑violent felonies to avoid a conviction altogether if they successfully complete the program. These programs are sometimes referred to as “pre‑trial probation” or “pre‑conviction probation,” but they function differently from ordinary probation.

Key Statutes and Programs

Statute / Program	What It Covers	Typical Offenses
Penal Code § 1000	General diversion for non‑violent felonies	Drug possession, petty theft, certain property crimes
Penal Code § 1001.36	Mental‑health diversion	Defendants with qualifying mental‑health diagnoses
Prop. 64 (Adult Use of Cannabis Act)	Cannabis‑related diversion	Possession or cultivation of small amounts of marijuana
County‑Specific Diversion Plans	Vary by jurisdiction (e.g., Los Angeles County’s “Diversion Program for Non‑Violent Felonies”)	Often mirrors state statutes but may add local requirements

These statutes give judges the discretion to offer a diversion agreement instead of proceeding to trial. If the defendant accepts, they must meet program conditions such as counseling, treatment, community service, or restitution.

Eligibility Requirements

• Non‑violent felony: The underlying charge must not involve the use or threat of physical force. Typical qualifying offenses include drug possession, certain property crimes, and fraud without a violent element.
• First‑time or low‑risk offender: Courts usually look for a clean or minimal criminal history.
• No pending violent charges: Any concurrent violent charge will generally disqualify a defendant.
• Willingness to comply: The defendant must agree to all program conditions and any monitoring requirements.

The Process

1. Attorney Review – Your defense attorney reviews the charge and determines whether the case fits a diversion statute.
2. Motion or Request – The attorney files a motion or makes a request for diversion with the court, citing the relevant statute (e.g., Penal Code § 1000).
3. Court Evaluation – The judge evaluates eligibility, often after a pre‑trial hearing. The prosecutor may also weigh in.
4. Program Acceptance – If approved, the court issues a Diversion Order outlining required activities and timelines.
5. Completion – Successful completion leads to dismissal of the charges; failure may result in the case reverting to the regular criminal process, where a conviction and subsequent probation could be imposed.

Benefits and Risks

Benefits

• Avoids a criminal conviction and the associated collateral consequences (employment, housing, voting rights).
• May provide treatment or counseling that addresses underlying issues.
• Often results in reduced or no fines.

Risks

• Mandatory compliance; any violation can trigger reinstatement of the original charges.
• Some diversion programs require payment for services, which can be a financial burden.
• Not all non‑violent felonies qualify; eligibility is at the judge’s discretion.

When to Seek Professional Guidance

Because diversion eligibility and the specific requirements differ by county and by the exact nature of the charge, it is essential to consult a licensed California criminal defense attorney. An attorney can assess the facts, identify the appropriate statute, and file the necessary motions to secure diversion.

For official statutory language, see California Penal Code §§ 1000‑1001.36 on the California Legislative Information site, and for a list of county diversion programs, visit the California Courts’ diversion‑programs page.