Can Theft Charges Qualify for Diversion in California?
Being charged with theft in California does not necessarily mean that a person will end up with a criminal conviction. Depending on the specific charge, the defendant's history, and the circumstances of the case, diversion may provide a path to dismissal of a theft charge.
For some defendants charged with misdemeanor theft offenses, California Penal Code section 1001.95 permits a judge to grant diversion before conviction. If the defendant successfully completes the court's requirements, the criminal charge can ultimately be dismissed.
For someone facing a first-time shoplifting, petty theft, or other misdemeanor theft charge in Northern California, diversion can be one of the most important potential outcomes to explore.
Can Petty Theft Qualify for Diversion?
In many cases, misdemeanor petty theft may be considered for diversion under Penal Code section 1001.95.
Petty theft is generally prosecuted under Penal Code sections 484 and 488. Depending on the circumstances, shoplifting may also be charged under Penal Code section 459.5.
Because these offenses may be misdemeanors and are not categorically excluded from Penal Code section 1001.95 in the same manner as certain other offenses, an eligible defendant may be able to ask the court for diversion.
Eligibility, however, does not guarantee that diversion will be granted. The judge retains discretion to decide whether diversion is appropriate in the particular case.
Is Theft Diversion Only Available to First-Time Offenders?
Not necessarily. California's misdemeanor diversion statute is not limited exclusively to defendants with completely clean criminal records.
However, being a first-time offender can provide a strong argument in favor of diversion.
For example, a defense attorney may argue that a shoplifting allegation involving someone with no prior criminal history represents an isolated mistake rather than a continuing threat to public safety. If the defendant has otherwise maintained employment, attended school, supported a family, or contributed positively to the community, those circumstances can strengthen the request.
A prior criminal record does not automatically make diversion impossible, but the nature, age, and extent of the prior record may affect the court's exercise of discretion.
Does the Prosecutor Have to Agree to Theft Diversion?
Penal Code section 1001.95 is a form of judicial diversion. The defense can therefore ask the court to grant diversion even when the prosecutor objects.
The prosecution is entitled to express its position and may argue that diversion is inappropriate because of the amount allegedly stolen, the defendant's record, the circumstances of the offense, or other factors.
Ultimately, however, the court determines whether diversion should be granted under the statute.
This can be particularly important in jurisdictions where prosecutors are unwilling to offer informal diversion or a dismissal on their own.
What Factors Can Help a Theft Diversion Request?
A strong diversion motion should explain why allowing the defendant an opportunity to earn a dismissal is appropriate under the circumstances.
Factors that may support diversion can include:
No prior criminal record;
No prior theft offenses;
A relatively low value of the property involved;
Recovery or return of the property;
Payment of restitution;
Stable employment;
Enrollment in school or college;
Community involvement;
Completion of a theft-awareness course;
Voluntary community service;
Positive character references;
Acceptance of appropriate responsibility without unnecessarily compromising the defense; and
Evidence showing that the incident was isolated.
The defense can also address weaknesses or mitigating circumstances in the prosecution's case.
Can a Defendant Complete a Theft Class Before Asking for Diversion?
In appropriate cases, taking proactive steps before a diversion hearing can strengthen the defense's request.
A defendant may benefit from completing a theft-prevention or decision-making course, performing community service, or addressing any underlying issue that contributed to the alleged incident.
The goal is to demonstrate to the court that imposing a criminal conviction may be unnecessary to prevent future misconduct.
Defendants should generally discuss these steps with their criminal defense attorney before enrolling in programs or providing written explanations of the incident. Statements made during classes, counseling, or applications can potentially create issues in a pending criminal case.
What Happens to Restitution in a Theft Diversion Case?
Restitution can be particularly important in theft cases.
If property was damaged, lost, or not recovered, the court may require the defendant to compensate the alleged victim as a condition of diversion.
In a shoplifting case, for example, the merchandise may already have been recovered by the store. In another case, there may be a dispute about the value of the property or the amount of the claimed loss.
A defense attorney can review the restitution demand and determine whether the claimed amount is supported by the evidence.
What Happens After Theft Diversion Is Successfully Completed?
The primary benefit of diversion is the opportunity to obtain a dismissal rather than a theft conviction.
When a defendant satisfactorily completes the diversion requirements, Penal Code section 1001.95 provides for dismissal of the criminal action under the applicable statutory procedures.
This can be especially important because a theft conviction may raise concerns for employers and professional licensing agencies. Allegations involving dishonesty can also be particularly problematic for people pursuing careers involving money, confidential information, professional responsibility, or positions of trust.
Avoiding a conviction can therefore have consequences well beyond avoiding jail or probation.
What Happens if You Fail Theft Diversion?
If a defendant does not satisfactorily complete diversion, the court can terminate diversion and resume the criminal prosecution.
The defendant may then have to defend the original theft charge.
For that reason, anyone granted diversion should carefully track deadlines and retain documentation showing completion of every requirement.
Can Shoplifting Charges Be Dismissed Through Diversion?
Potentially, yes.
A person charged with misdemeanor shoplifting may be able to obtain dismissal through judicial diversion if the offense and defendant qualify and the judge agrees to grant diversion.
A typical argument might involve a defendant with no criminal history who is accused of taking relatively low-value merchandise, has returned or paid for the property, has voluntarily completed a theft-prevention course, and has otherwise demonstrated that the incident is unlikely to occur again.
Every case is different, but circumstances like these can provide the defense with significant arguments for why a conviction is unnecessary.
What if the Theft Charge Is a Felony?
Penal Code section 1001.95 applies to misdemeanor diversion, so a felony theft charge presents a different situation.
However, some California theft offenses are "wobblers," meaning they may potentially be prosecuted or ultimately treated as either felonies or misdemeanors depending on the offense and circumstances.
In an appropriate case, a defense attorney may investigate whether the charge can first be reduced to a misdemeanor and whether diversion or another favorable disposition could then become available.
The availability of this strategy depends heavily on the particular offense and procedural posture of the case.
Why Diversion Can Be Important for College Students
A theft conviction can create significant concerns for a college student.
Beyond criminal penalties, a student may worry about:
University disciplinary proceedings;
Internships;
Graduate or professional school applications;
Employment background checks;
Professional licensing; and
Campus employment.
Where appropriate, a defense attorney can explain these collateral consequences to the court as part of the argument that diversion and rehabilitation are preferable to a criminal conviction.
Why Diversion Can Be Important for Professionals
Professionals may have even more at stake when accused of a theft-related offense.
Teachers, nurses, healthcare workers, financial professionals, government employees, attorneys, contractors, and other licensed professionals may face employment or licensing concerns after a criminal conviction.
Because theft offenses can be viewed as involving dishonesty, avoiding a conviction may be particularly important.
The potential professional consequences of the case should therefore be discussed with a criminal defense attorney before accepting a plea agreement.
Other Defenses to California Theft Charges
Diversion is an alternative resolution, not a substitute for evaluating the strength of the prosecution's case.
A person accused of theft may have substantial defenses. Depending on the circumstances, the prosecution may have difficulty proving:
The defendant actually took the property;
The property belonged to someone else;
The defendant intended to steal;
The defendant intended to permanently deprive the owner of the property;
The value alleged by the prosecution;
The identity of the person responsible; or
That evidence was obtained through a lawful search or seizure.
A defendant should therefore have the evidence evaluated before assuming that diversion is necessarily the best outcome.
Theft Diversion Attorney in Northern California
A misdemeanor theft charge can have consequences that extend well beyond the sentence imposed by the criminal court. For eligible defendants, California misdemeanor diversion under Penal Code section 1001.95 may provide an opportunity to avoid a theft conviction and ultimately obtain dismissal of the case.
A Northern California criminal defense attorney can evaluate whether the offense qualifies for diversion, identify mitigating circumstances, gather supporting documentation, and present the court with a persuasive argument for dismissal through diversion.
For defendants facing petty theft, shoplifting, or other theft charges in Chico, Butte County, Glenn County, Tehama County, Yuba County, Sutter County, and surrounding Northern California communities, it is worth determining whether diversion is available before resolving the case through a traditional guilty or no-contest plea.
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