BILL NUMBER: AB 994 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 17, 2013
INTRODUCED BY Assembly Member Lowenthal
FEBRUARY 22, 2013
An act to amend Section 1001.2 of 1001 of,
to repeal Sections 1001.8 and 1001.9 of, and to repeal and add
Sections 1001.1, 1001.2, 1001.3, 1001.4, 1001.6, and 1001.7 of,
the Penal Code, relating to diversion programs.
LEGISLATIVE COUNSEL'S DIGEST
AB 994, as amended, Lowenthal. Misdemeanor diversion programs.
Under existing law, prosecution of an offense filed as a
misdemeanor may be postponed, either temporarily or permanently, at
any point in the judicial process from the point at which the accused
is charged until adjudication, for the person charged to participate
in a diversion program for the treatment of problem drinking or
alcoholism. Existing law requires the district attorney of each
county annually to review any diversion program. Existing law
prohibits a program from continuing without the approval of the
district attorney and prohibits a person from participating in a
diversion program without the authorization of the district attorney.
This bill would require each county to establish and maintain a
pretrial diversion program , to be
administered by the superior court of that county, and would
remove the requirement for approval, both of the program and the
participation by an individual, by the district attorney. The
program would specify the administrative procedures and who would be
eligible for the pretrial diversion program. By requiring
diversion programs in additional counties this bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1001 of the Penal
Code is amended to read:
1001. It is the intent of the Legislature that neither this
chapter, Chapter 2.5 (commencing with Section 1000) of this title,
nor any other provision of law be construed to preempt other current
or future pretrial or precomplaint diversion programs. It is also the
intent of the Legislature that current or future posttrial diversion
programs not be preempted, except as provided in Section 13201 or
13352.5 of the Vehicle Code. Sections 1001.2 to 1001.11,
inclusive, of this chapter shall apply only to pretrial diversion
programs as defined in Section 1001.1.
SEC. 2. Section 1001.1 of the Penal
Code is repealed.
1001.1. As used in Sections 1001.2 to 1001.11, inclusive, of this
chapter, pretrial diversion refers to the procedure of postponing
prosecution of an offense filed as a misdemeanor either temporarily
or permanently at any point in the judicial process from the point at
which the accused is charged until adjudication.
SEC. 3. Section 1001.1 is added to the
Penal Code , to read:
1001.1. Each county shall establish a pretrial diversion program,
administered by the superior court of the county, by which a
defendant may be offered, at the discretion of the court, diversion
in lieu of sentencing as provided in this chapter.
SEC. 4. Section 1001.2 of the Penal
Code is repealed.
1001.2. (a) This chapter shall not apply to any pretrial
diversion or posttrial programs for the treatment of problem drinking
or alcoholism utilized for persons convicted of one or more offenses
under Section 23152 or 23153 or former Section 23102 of the Vehicle
Code or to pretrial diversion programs established pursuant to
Chapter 2.5 (commencing with Section 1000) of this title nor shall
this chapter be deemed to authorize any pretrial diversion or
posttrial programs for persons alleged to have committed violation of
Section 23152 or 23153 of the Vehicle Code.
(b) The district attorney of each county shall review annually any
diversion program established pursuant to this chapter, and no
program shall continue without the approval of the district attorney.
No person shall be diverted under a program unless it has been
approved by the district attorney. Nothing in this subdivision shall
authorize the prosecutor to determine whether a particular defendant
shall be diverted.
SEC. 5. Section 1001.2 is added to the
Penal Code , to read:
1001.2. (a) The pretrial diversion program established by this
chapter shall apply whenever a case is before a court upon an
accusatory pleading concerning the commission of a misdemeanor,
except a misdemeanor specified in subdivision (b).
(b) This program shall not apply to a diversion program for the
treatment of problem drinking or alcoholism utilized for persons
convicted of one or more offenses under Section 23152 or 23153 or
former Section 23105 of the Vehicle Code, or to pretrial diversion
programs established pursuant to Chapter 2.5 (commencing with Section
1000).
(c) Diversion shall not be an option under this chapter whenever
the accusatory pleading charges the commission of a misdemeanor for
which any of the following apply:
(1) Incarceration would be mandatory upon conviction of the
defendant.
(2) Registration would be required upon conviction pursuant to
Section 290.
(3) The granting of probation is prohibited.
(4) The magistrate determines that the offense shall be prosecuted
as a misdemeanor pursuant to paragraph (5) of subdivision (b) of
Section 17.
SEC. 6. Section 1001.3 of the
Penal Code is repealed.
1001.3. At no time shall a defendant be required to make an
admission of guilt as a prerequisite for placement in a pretrial
diversion program.
SEC. 7. Section 1001.3 is added to the
Penal Code , to read :
1001.3. (a) At the time of filing a criminal complaint, or before
the defendant's arraignment, the prosecuting attorney shall
determine whether the defendant is eligible for the misdemeanor
diversion program. If the prosecuting attorney determines that the
defendant is eligible for the program, he or she shall advise the
defendant and his or her attorney of that determination. This
notification shall include all of the following:
(1) A full description of the procedures for diversion.
(2) A clear statement that in lieu of trial, the court may grant
diversion provided that the defendant waives time for arraignment and
plea.
(3) A clear statement that upon failure to perform a term or
condition under the program, or to comply with a court order, the
prosecuting attorney or the court shall reinstate proceedings.
(b) The period during which diversion is granted shall be no
longer than 365 days.
(c) Every defendant who chooses to participate in the program
shall be required to complete each of the following:
(1) Enroll in and complete an educational program as accepted by
the court.
(2) Make full restitution.
(3) Comply with any court-ordered protective orders or stay-away
orders.
(d) At no time shall a defendant be required to make an admission
of guilt as a prerequisite for placement in a pretrial diversion
program under this chapter.
(e) At the end of the pretrial diversion program, the defendant
shall be ordered back to court for pretrial or, if in compliance,
dismissal.
(f) If, before the time of the dismissal hearing, the prosecuting
attorney files charges for the commission of a new criminal offense
during the diversion period, has failed to complete the assigned
educational program, has willfully failed to make full restitution,
has failed to pay all fees, or has failed to complete or comply with
any other term or condition of the diversion program, the prosecuting
attorney or the court may reinstate proceedings and set the matter
for pretrial.
(g) The diversion program shall not be deemed to have been
successfully completed, nor can the defendant's charge or charges be
dismissed, until all terms and conditions of the program have been
met.
(h) After notice to the defendant, the court shall hold a hearing
to determine whether criminal proceedings should be reinstated. If
the defendant has performed satisfactorily during the period in which
diversion was granted, at the end of that period, the criminal
charge or charges shall be dismissed.
(i) When a defendant's case is diverted, a bail bond or
undertaking, or a deposit held in lieu thereof, shall be ordered
exonerated by the court.
SEC. 8. Section 1001.4 of the Penal
Code is repealed.
1001.4. A divertee is entitled to a hearing, as set forth by law,
before his or her pretrial diversion can be terminated for cause.
SEC. 9. Section 1001.4 is added to the
Penal Code , to read:
1001.4. (a) A case in which the defendant may owe restitution
shall be handled as follows:
(1) If, at the time of the defendant's admission into the program,
the defendant, the prosecuting attorney, and the victim agree as to
the amount of restitution owed, the court shall order the defendant
to pay that agreed upon amount of restitution.
(2) If, at the time of the defendant's admission into the program,
there is insufficient information, or the parties disagree, about
the nature or amount of restitution owed, the prosecuting attorney
will determine the amount of restitution owed to a victim or other
injured or damaged party. If the defendant disagrees with the amount
of restitution, he or she shall have a right to a hearing at which
the court shall determine the amount of restitution owed. The
defendant may waive the right to a restitution hearing and stipulate
to the amount of restitution determined by the prosecuting attorney.
(b) At the time that restitution is ordered, the defendant shall
be ordered to complete, and shall complete, a "Financial Disclosure
Statement" as described in paragraph (5) of subdivision (f) of
Section 1202.4.
(c) At the time that diversion is granted, the defendant shall be
ordered to pay restitution in full prior to the scheduled pretrial
date.
SEC. 10. Section 1001.6 of the Penal
Code is repealed.
1001.6. At such time that a defendant's case is diverted, any
bail bond or undertaking, or deposit in lieu thereof, on file by or
on behalf of the defendant shall be exonerated, and the court shall
enter an order so directing.
SEC. 11. Section 1001.6 is added to the
Penal Code , to read:
1001.6. (a) Before the defendant may be deemed to have
successfully completed the diversion program, he or she shall pay in
full the following costs and fees:
(1) The costs of the required educational program, to be paid
directly to the provider of the educational program.
(2) The prosecuting attorney's administrative fee in an amount
authorized by the board of supervisors.
(3) Any fees required by the court pursuant to Section 1001.16.
(b) The prosecuting attorney's administrative fee shall not be
waived or discounted by the court, unless the court first determines
that the person is unable to pay all or part of that fee.
(c) The costs and fees listed in this section shall be paid in
full prior to completion of the diversion program.
SEC. 12. Section 1001.7 of the Penal
Code is repealed.
1001.7. If the divertee has performed satisfactorily during the
period of diversion, the criminal charges shall be dismissed at the
end of the period of diversion.
SEC. 13. Section 1001.7 is added to the
Penal Code , to read:
1001.7. (a) Any record filed with the Department of Justice shall
indicate the disposition in those cases diverted pursuant to this
chapter. Upon successful completion of a diversion program, the
arrest upon which the case was diverted shall be deemed to have never
occurred. The defendant may indicate in response to any question
concerning his or her prior criminal record that he or she was not
arrested or granted deferred entry of judgment for the offense,
except as specified in subdivision (b). A record pertaining to an
arrest resulting in successful completion of a diversion program
shall not, without the defendant's consent, be used in any way that
could result in the denial of any employment, benefit, license, or
certificate.
(b) The defendant shall be advised that, regardless of his or her
successful completion of the diversion program, the arrest upon which
the case was diverted may be disclosed by the Department of Justice
in response to any peace officer application request and that,
notwithstanding subdivision (a), this section does not relieve him or
her of the obligation to disclose the arrest in response to any
direct question contained in any questionnaire or application for a
position as a peace officer, as defined in Section 830.
SEC. 14. Section 1001.8 of the Penal
Code is repealed.
1001.8. Any record filed with the Department of Justice shall
indicate the disposition of those cases diverted pursuant to this
chapter.
SEC. 15. Section 1001.9 of the Penal
Code is repealed.
1001.9. (a) Any record filed with the Department of Justice shall
indicate the disposition in those cases diverted pursuant to this
chapter. Upon successful completion of a diversion program, the
arrest upon which the diversion was based shall be deemed to have
never occurred. The divertee may indicate in response to any question
concerning his or her prior criminal record that he or she was not
arrested or diverted for the offense, except as specified in
subdivision (b). A record pertaining to an arrest resulting in
successful completion of a diversion program shall not, without the
divertee's consent, be used in any way that could result in the
denial of any employment, benefit, license, or certificate.
(b) The divertee shall be advised that, regardless of his or her
successful completion of diversion, the arrest upon which the
diversion was based may be disclosed by the Department of Justice in
response to any peace officer application request and that,
notwithstanding subdivision (a), this section does not relieve him or
her of the obligation to disclose the arrest in response to any
direct question contained in any questionnaire or application for a
position as a peace officer, as defined in Section 830.
SECTION 1. Section 1001.2 of the Penal Code is
amended to read:
1001.2. (a) This chapter shall not apply to a pretrial diversion
or posttrial program for the treatment of problem drinking or
alcoholism utilized for persons convicted of one or more offenses
under Section 23152 or 23153 or former Section 23102 of the Vehicle
Code or to a pretrial diversion program established pursuant to
Chapter 2.5 (commencing with Section 1000) of this title. Nor shall
this chapter be deemed to authorize a pretrial diversion or posttrial
program for persons alleged to have committed a violation of Section
23152 or 23153 of the Vehicle Code.
(b) Each county shall establish and maintain a diversion program
pursuant to this chapter.
SEC. 2. SEC. 16. If the Commission
on State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.