Amended in Assembly May 24, 2013

Amended in Assembly April 29, 2013

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 1001 of, to repeal Sections begin insert 1001.7, end insert 1001.8 begin insert , end insert and 1001.9 of, and to repeal and add Sections 1001.1, 1001.2, 1001.3, 1001.4, 1001.6, begin delete 1001.7, end delete and 1001.50 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 begin delete superior court end delete begin insert district attorney end insert of that county, and would begin delete remove the requirement for approval, both of the program and the participation by an individual, by end delete begin insert authorize either end insert the district attorney begin insert or the superior court to offer diversion to a defendant end insert . 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.

SEC. 2.  

Section 1001.1 of the Penal Code is repealed.

SEC. 3.  

Section 1001.1 is added to the Penal Code, to read:

1001.1.  

(a) Each county shall establish a pretrial diversion
program, administered by the begin delete superior court end delete begin insert district attorney end insert of
the county, by which a defendant may be offered, at the discretion
of the begin delete court end delete begin insert district attorney or the superior court of the county end insert ,
diversion in lieu of sentencing as provided in this chapter.

(b) As used in this chapter, “pretrial diversion” means 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. 4.  

Section 1001.2 of the Penal Code is repealed.

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.

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 begin delete prosecuting end delete begin insert district end insert attorney shall
determine whether the defendant is eligible for the misdemeanor
diversion program. begin insert If the district attorney determines that a
defendant is not eligible for the misdemeanor diversion program,
the court may independently determine whether the defendant is
eligible for the program. end insert If the begin delete prosecuting end delete begin insert district end insert attorney begin insert or the
court end insert determines that the defendant is eligible for the program, begin delete he
or she end delete begin insert the district attorney end insert 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
begin delete prosecuting end delete begin insert district end insert 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 begin delete an educational program end delete begin insert counseling
or community service, or both, end insert as accepted by the begin delete court end delete begin insert district end insert
begin insert attorney end insert .

(2) Make full restitution begin insert , if applicable end insert .

(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 begin delete prosecuting end delete
begin insert district end insert attorney files charges for the commission of a new criminal
offense during the diversion period, or if the defendant has failed
to complete the assigned begin delete educational program end delete begin insert counseling or
community service end insert , has willfully failed to make full restitution begin delete ,
has failed end delete begin insert or end insert to pay all fees, or has failed to complete or comply
with any other term or condition of the diversion program, the
begin delete prosecuting end delete begin insert district end insert 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.

SEC. 9.  

Section 1001.4 is added to the Penal Code, to read:

1001.4.  

begin delete (a) end delete begin delete   end delete begin delete A end delete begin insert In a end insert begin insert end insert case in which the defendant begin delete may owe end delete begin insert owes end insert
restitution begin delete shall be handled as follows: end delete begin insert , the district end insert begin insert attorney shall
establish procedures for the collection and distribution of that
restitution to the victim or victims. end insert

begin delete

(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 delete

SEC. 10.  

Section 1001.6 of the Penal Code is repealed.

begin delete

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.

end delete

begin delete SEC. 13. end delete
begin insert SEC. 11. end insert   

Section begin delete 1001.7 end delete begin insert 1001.6 end insert is added to the Penal Code,
to read:

begin delete 1001.7. end delete
begin insert 1001.6. 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 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 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.

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 delete SEC. 14. end delete
begin insert SEC. 13. end insert   

Section 1001.8 of the Penal Code is repealed.

begin delete SEC. 15. end delete
begin insert SEC. 14. end insert   

Section 1001.9 of the Penal Code is repealed.

begin delete SEC. 16. end delete
begin insert SEC. 15. end insert   

Section 1001.50 of the Penal Code is repealed.

begin delete SEC. 17. end delete
begin insert SEC. 16. end insert   

Section 1001.50 is added to the Penal Code, to read:

1001.50.  

(a) Each county shall establish a pretrial diversion
program, administered by the begin delete superior court end delete begin insert district attorney end insert of
the county, by which the defendant may be offered, at the discretion
of the begin delete court end delete begin insert district attorney or the superior court of the county end insert ,
diversion in lieu of sentencing as provided in this chapter.

(b) As used in this chapter, “pretrial diversion” means the
procedure of postponing prosecution, either temporarily or
permanently, at any point in the judicial process from the point at
which the accused is charged until adjudication.

begin delete SEC. 18. end delete
begin insert SEC. 17. end insert   

begin delete SEC. 18. end delete
begin insert SEC. 17. 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.