Amended in Assembly April 17, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 994

Introduced by Assembly Member Lowenthal

February 22, 2013

An act to amend Section begin delete 1001.2 of end delete begin insert 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, end insert 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 begin insert pretrial diversion end insert program begin insert , to be administered by the superior court of that county, end insert and would remove the requirement for approval, both of the program and the participation by an individual, by the district attorney. begin insert The program would specify the administrative procedures and who would be eligible for the pretrial diversion program. end insert 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:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1001 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

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. begin delete Sections 1001.2 to 1001.11,
inclusive, of this chapter shall apply only to pretrial diversion
programs as defined in Section 1001.1. end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1001.1 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

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.

end delete

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 1001.1 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.1. end insert   

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.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 1001.2 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

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.

end delete

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 1001.2 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.2. end insert   

(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.

end insert

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 1001.3 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

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.

end delete

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 1001.3 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.3. end insert   

(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.

end insert

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 1001.4 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

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.

end delete

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 1001.4 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.4. end insert   

(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.

end insert

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert Section 1001.6 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

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.

end delete

begin insert

begin insert SEC. 11. end insert   

end insert

begin insert Section 1001.6 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.6. end insert   

(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.

end insert

begin insert

begin insert SEC. 12. end insert   

end insert

begin insert Section 1001.7 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

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.

end delete

begin insert

begin insert SEC. 13. end insert   

end insert

begin insert Section 1001.7 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.7. end insert   

(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.

end insert

begin insert

begin insert SEC. 14. end insert   

end insert

begin insert Section 1001.8 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

1001.8.  

Any record filed with the Department of Justice shall
indicate the disposition of those cases diverted pursuant to this
chapter.

end delete

begin insert

begin insert SEC. 15. end insert   

end insert

begin insert Section 1001.9 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

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.

end delete

begin delete

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.

end delete

begin delete SEC. 2. end delete
begin insert SEC. 16. end insert   

begin delete SEC. 2. end delete
begin insert SEC. 16. end insert   

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.