If you’re asking for diversion a second time, you’ll usually run into resistance.
And it often sounds like this:
“They already got diversion once.”
That’s the starting point for most prosecutors.
From their perspective, diversion is a one-time opportunity. If someone ends up back in court, the assumption is that the first chance didn’t work.
That’s why second diversion requests are often denied.
But that’s not the whole picture.
The Prosecutor’s View: One Chance Was Enough
Prosecutors tend to approach these cases with a few core concerns:
1. Prior Opportunity
The argument is straightforward:
“The system already gave them a break.”
If diversion was meant to prevent future cases, then a new case raises immediate concern.
2. Accountability
There is also a fairness argument:
- Other defendants only get one opportunity
- Allowing a second diversion may feel inconsistent
From that perspective, denial becomes about maintaining uniformity.
3. Fear of Repeat Behavior
Prosecutors are also looking ahead:
“If we give diversion again, will this just happen a third time?”
That concern drives a lot of opposition.
Where That Analysis Falls Short
Here’s where things start to break down.
The prosecution’s approach often assumes:
“Second case = diversion didn’t work”
But that’s not always accurate.
The Problem With a One-Size-Fits-All Approach
Not all second cases are the same.
Treating them that way ignores key details like:
- Timing – when the second case actually occurred
- Context – what was going on at the time
- Change – what has happened since
Without looking at those factors, the analysis becomes overly simplistic.
When Prosecutors Get It Wrong
Second diversion requests are strongest when they involve a timing issue rather than a pattern.
Example Scenario
- First case leads to diversion
- Second incident happens shortly after
- At that point, the underlying issue hasn’t been addressed yet
- Later, the person engages in meaningful treatment or change
In that situation, calling it a “failed diversion” doesn’t really fit.
It’s more accurate to say:
“The issue wasn’t addressed yet—and now it is.”
What Courts Are Allowed to Do
This is where the court comes in.
Under Penal Code § 1001.95, judges are not required to follow the prosecution’s recommendation. The court has independent authority to grant diversion if it finds that doing so serves the interests of justice.
That allows the judge to ask a different question:
“Is this person actually likely to reoffend now?”
That question focuses on current risk, not just past opportunity.
What Judges Look For Instead
Courts tend to take a more practical approach.
They look at:
1. Timing
Did the second case happen before anything meaningful changed?
2. Underlying Cause
Is there a reason behind the behavior that wasn’t addressed before?
3. What Has Changed
This is the most important factor.
Judges want to see:
- Counseling or treatment
- Structure or safeguards
- Insight into the behavior
4. Risk Going Forward
Ultimately, the question is:
“Is this likely to happen again?”
If the answer is no, diversion becomes a reasonable option—even a second time.
Why These Cases Turn Into Disputes
Second diversion cases are one of the more common areas of disagreement between defense attorneys and prosecutors.
The prosecution focuses on:
- Prior opportunity
- Repeat contact
- System integrity
The defense focuses on:
- Timing
- Context
- Behavioral change
The court decides which view better fits the facts.
The Bottom Line
Prosecutors push back on second diversion requests because they view diversion as a one-time opportunity.
That position makes sense in some cases.
But it does not apply to every case.
When timing, context, and meaningful change are taken into account, a second diversion request can still be appropriate—and sometimes necessary to actually address the problem.
Final Thought
A second diversion request is not about asking for another break.
It’s about showing that the situation is different now.
When that difference is clear, courts can—and do—reach a different conclusion than the prosecution.
