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 countiesbegin insert,end insert 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 1001 of the Penal Code is amended to
2read:
It is the intent of the Legislature that neither this chapter,
4Chapter 2.5 (commencing with Section 1000) of this title, nor any
5other provision of law be construed to preempt other current or
6future pretrial or precomplaint diversion programs. It is also the
7intent of the Legislature that current or future posttrial diversion
8programs not be preempted, except as provided in Section 13201
9or 13352.5 of the Vehicle Code.
Section 1001.1 of the Penal Code is repealed.
Section 1001.1 is added to the Penal Code, to read:
begin insert(a)end insertbegin insert end insert Each county shall establish a pretrial diversion
13program, administered by the superior court of the county, by
14which a defendant may be offered, at the discretion of the court,
15diversion in lieu of sentencing as provided in this chapter.
16(b) As used in this chapter, “pretrial diversion” means the
17procedure of postponing prosecution of an offense filed as a
18misdemeanor, either temporarily or permanently, at any point in
19the
judicial process from the point at which the accused is charged
20until adjudication.
Section 1001.2 of the Penal Code is repealed.
Section 1001.2 is added to the Penal Code, to read:
(a) The pretrial diversion program established by this
24chapter shall apply whenever a case is before a court upon an
P3 1accusatory pleading concerning the commission of a misdemeanor,
2except a misdemeanor specified in subdivision (b).
3(b) This program shall not apply to a diversion program for the
4treatment of problem drinking or alcoholism utilized for persons
5convicted of one or more offenses under Section 23152 or 23153
6or former Section 23105 of the Vehicle Code, or to pretrial
7diversion programs established pursuant to Chapter 2.5
8(commencing with Section 1000).
9(c) Diversion shall not be an option
under this chapter whenever
10the accusatory pleading charges the commission of a misdemeanor
11for which any of the following apply:
12(1) Incarceration would be mandatory upon conviction of the
13defendant.
14(2) Registration would be required upon conviction pursuant to
15Section 290.
16(3) The granting of probation is prohibited.
17(4) The magistrate determines that the offense shall be
18prosecuted as a misdemeanor pursuant to paragraph (5) of
19subdivision (b) of Section 17.
Section 1001.3 of the Penal Code is repealed.
Section 1001.3 is added to the Penal Code, to read:
(a) At the time of filing a criminal complaint, or before
23the defendant’s arraignment, the prosecuting attorney shall
24determine whether the defendant is eligible for the misdemeanor
25diversion program. If the prosecuting attorney determines that the
26defendant is eligible for the program, he or she shall advise the
27defendant and his or her attorney of that determination. This
28notification shall include all of the following:
29(1) A full description of the procedures for diversion.
30(2) A clear statement that in lieu of trial, the court may grant
31diversion provided that the defendant waives time for arraignment
32and
plea.
33(3) A clear statement that upon failure to perform a term or
34condition under the program, or to comply with a court order, the
35prosecuting attorney or the court shall reinstate proceedings.
36(b) The period during which diversion is granted shall be no
37longer than 365 days.
38(c) Every defendant who chooses to participate in the program
39shall be required to complete each of the following:
P4 1(1) Enroll in and complete an educational program as accepted
2by the court.
3(2) Make full restitution.
4(3) Comply with any court-ordered protective
orders or
5stay-away orders.
6(d) At no time shall a defendant be required to make an
7
admission of guilt as a prerequisite for placement in a pretrial
8diversion program under this chapter.
9(e) At the end of the pretrial diversion program, the defendant
10shall be ordered back to court for pretrial or, if in compliance,
11dismissal.
12(f) If, before the time of the dismissal hearing, the prosecuting
13attorney files charges for the commission of a new criminal offense
14during the diversion period,begin insert or if the defendantend insert has failed to
15complete the assigned educational program, has willfully failed
16to make full restitution, has failed to pay all fees, or has failed to
17complete or comply with any other term or condition of the
18diversion program, the prosecuting attorney
or the court may
19reinstate proceedings and set the matter for pretrial.
20(g) The diversion program shall not be deemed to have been
21successfully completed, nor can the defendant’s charge or charges
22be dismissed, until all terms and conditions of the program have
23been met.
24(h) After notice to the defendant, the court shall hold a hearing
25to determine whether criminal proceedings should be reinstated.
26If the defendant has performed satisfactorily during the period in
27which diversion was granted, at the end of thatbegin delete period,end deletebegin insert periodend insert the
28criminal charge or charges shall be dismissed.
29(i) When a defendant’s case is diverted, a bail bond or
30undertaking, or a deposit held in lieu thereof, shall be ordered
31exonerated by the court.
Section 1001.4 of the Penal Code is repealed.
Section 1001.4 is added to the Penal Code, to read:
(a) A case in which the defendant may owe restitution
35shall be handled as follows:
36(1) If, at the time of the defendant’s admission into the program,
37the defendant, the prosecuting attorney, and the victim agree as to
38the amount of restitution owed, the court shall order the defendant
39to pay that agreed upon amount of restitution.
P5 1(2) If, at the time of the defendant’s admission into the program,
2there is insufficient information, or the parties disagree, about the
3nature or amount of restitution owed, the prosecuting attorney will
4determine the amount of restitution owed to a victim or other
5injured or
damaged party. If the defendant disagrees with the
6amount of restitution, he or she shall have a right to a hearing at
7which the court shall determine the amount of restitution owed.
8The defendant may waive the right to a restitution hearing and
9stipulate to the amount of restitution determined by the prosecuting
10attorney.
11(b) At the time that restitution is ordered, the defendant shall
12be ordered to complete, and shall complete, a “Financial Disclosure
13Statement” as described in paragraph (5) of subdivision (f) of
14Section 1202.4.
15(c) At the time that diversion is granted, the defendant shall be
16ordered to pay restitution in full prior to the scheduled pretrial
17date.
Section 1001.6 of the Penal Code is repealed.
Section 1001.6 is added to the Penal Code, to read:
(a) Before the defendant may be deemed to have
21successfully completed the diversion program, he or she shall pay
22in full the following costs and fees:
23(1) The costs of the required educational program, to be paid
24directly to the provider of the educational program.
25(2) The prosecuting attorney’s administrative fee in an amount
26authorized by the board of supervisors.
27(3) Any fees required by the court pursuant to Section 1001.16.
28(b) The prosecuting attorney’s administrative fee shall not be
29waived
or discounted by the court, unless the court first determines
30that the person is unable to pay all or part of that fee.
31(c) The costs and fees listed in this section shall be paid in full
32prior to completion of the diversion program.
Section 1001.7 of the Penal Code is repealed.
Section 1001.7 is added to the Penal Code, to read:
(a) Any record filed with the Department of Justice
36shall indicate the disposition in those cases diverted pursuant to
37this chapter. Upon successful completion of a diversion program,
38the arrest upon which the case was diverted shall be deemed to
39have never occurred. The defendant may indicate in response to
40any question concerning his or her prior criminal record that he or
P6 1she was not arrested orbegin delete granted deferred entry of judgmentend deletebegin insert divertedend insert
2 for the offense, except as specified in subdivision (b). A record
3pertaining to an arrest resulting in successful
completion of a
4diversion program shall not, without the defendant’s consent, be
5used in any way that could result in the denial of any employment,
6benefit, license, or certificate.
7(b) The defendant shall be advised that, regardless of his or her
8successful completion of the diversion program, the arrest upon
9which the case was diverted may be disclosed by the Department
10of Justice in response to any peace officer application request and
11that, notwithstanding subdivision (a), this section does not relieve
12him or her of the obligation to disclose the arrest in response to
13any direct question contained in any questionnaire or application
14for a position as a peace officer, as defined in Section 830.
Section 1001.8 of the Penal Code is repealed.
Section 1001.9 of the Penal Code is repealed.
begin insertSection 1001.50 of the end insertbegin insertPenal Codeend insertbegin insert is repealed.end insert
(a) Notwithstanding any other provision of law, this
19chapter shall become operative in a county only if the board of
20supervisors adopts the provisions of this chapter by ordinance.
21(b) The district attorney of each county shall review annually
22any diversion program established pursuant to this chapter, and
23no program shall continue without the approval of the district
24attorney. No person shall be diverted under a program unless it
25has been approved by the district attorney. Nothing in this
26subdivision shall authorize the prosecutor to determine whether a
27particular defendant shall be diverted.
28(c) As used in this chapter, “pretrial diversion” means the
29procedure of postponing prosecution either temporarily or
30permanently at any point in the judicial process from the point at
31which the accused is charged until adjudication.
Section 1001.50 is added to the Penal Code, to read:
(a) Each county shall establish a pretrial diversion
34program, administered by the superior court of the county, by
35which the defendant may be offered, at the discretion of the court,
36diversion in lieu of sentencing as provided in this chapter.
37(b) As used in this chapter, “pretrial diversion” means the
38procedure of postponing prosecution, either temporarily or
39permanently, at any point in the judicial process from the point at
40which the accused is charged until adjudication.
If the Commission on State Mandates determines that
3this act contains costs mandated by the state, reimbursement to
4local agencies and school districts for those costs shall be made
5pursuant to Part 7 (commencing with Section 17500) of Division
64 of Title 2 of the Government Code.
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