Amended in Senate June 25, 2013

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 1001.7, 1001.8, and 1001.9 of, and to repeal and add Sections 1001.1, 1001.2, 1001.3, begin insert 1001.35, end insert 1001.4, 1001.6, and 1001.50 of, begin insert and to add Section 1001.56 to, 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 delete pretrial end delete begin insert misdemeanor end insert diversion program, to be administered by the district attorney of that county, and would authorize either the district attorney or the superior court to offer diversion to a defendant begin insert , as specified end insert . The program would specify the administrative procedures and who would be eligible for the begin delete pretrial end delete begin insert misdemeanor end insert 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 begin delete pretrial end delete begin insert misdemeanor end insert
diversion program, administered by the district attorney of the
county, by which a defendant may be offered, at the discretion of
the district begin delete attorney or the superior court of the county, end delete begin insert attorney, end insert
diversion in lieu of sentencing as provided in this chapter. begin insert The
superior court of the county may also offer the defendant postplea
diversion, pursuant to Section 1001.35, in lieu of sentencing as
provided in this chapter. end insert

(b) As used in this chapter, begin delete “pretrial end delete begin insert the following definitions
shall apply: end insert

begin insert (1) end insert begin insert   end insert begin insert “Misdemeanor end insert 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.

begin insert

(2) “Prefile diversion” is diversion that is offered prior to filing
of the accusatory pleading.

end insert begin insert

(3) “Preplea diversion” is diversion that is offered after the
accusatory pleading is filed but prior to the entry of a plea.

end insert begin insert

(4) “Postplea diversion” is diversion that is offered after the
defendant has entered a plea of guilty.

end insert

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 begin delete pretrial end delete begin insert misdemeanor end insert diversion program
established by this chapter begin delete shall apply end delete begin insert may be offered to a
defendant end insert whenever begin insert a district attorney is prepared to file an
a end insert begin insert ccusatory pleading concerning the commission of a misdemeanor
or when end insert 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.

begin insert

(5) The victim is a person identified in Section 6211 of the
Family Code or the victim is a minor.

end insert

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)  begin delete At the time of filing a criminal complaint, or before
the defendant’s arraignment, the end delete begin insert The end insert district attorney begin delete shall end delete begin insert may end insert
determine whether the defendant is eligible for the misdemeanor
diversion program. If the district attorney determines that a
defendant is not eligible for the misdemeanor diversion program,
begin insert and if the defendant has entered a guilty plea, end insert the court may
independently determine whether the defendant is eligible for begin delete the
program. end delete begin insert postplea diversion, pursuant to Section 1001.35. end insert If the
district attorney or the court determines that the defendant is
eligible for begin insert diversion under end insert the program, the district attorney shall
advise the begin delete defendant end delete begin insert defendant, end insert and begin delete his or her end delete begin insert the defendant’s end insert
attorney begin insert for preplea diversion and postplea diversion, end insert of begin delete that end delete begin insert the end insert
determination. This notification shall include all of the following:

(1) A full description of the procedures for diversion.

(2)  begin delete A end delete begin insert In the case of preplea diversion, a end insert clear statement begin delete that end delete
begin insert that, end insert in lieu of trial, begin delete the court may grant end delete diversion begin delete provided that end delete
begin insert may be granted if end insert the defendant waives time for arraignment and
plea.

(3) A clear statement that begin delete upon end delete failure to perform a term or
condition begin delete under end delete begin insert of end insert the program, or to comply with a court order,
begin insert will result in end insert the district attorney begin delete or the court shall reinstate
proceedings end delete begin insert reinstating criminal proceedings against the defendant
as if diversion had not occurred end insert .

begin delete

(b) The period during which diversion is granted shall be no
longer than 365 days.

end delete begin delete

(c)

end delete

begin insert (b) end insert  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 counseling or community service,
or both end delete begin insert at least one of the following end insert , as accepted by the district begin delete attorney. end delete begin insert attorney or the court where the court determines the
defendant is eligible pursuant to subdivision (a) of Section 1001.3: end insert

begin insert

(A) Counseling.

end insert begin insert

(B) Community service.

end insert begin insert

(C) An educational program.

end insert

(2) Make full restitution, if applicable.

(3) Comply with any court-ordered protective orders or
stay-away orders.

begin delete

(d) At no time shall a

end delete

begin insert (c) end insert begin insert   end insert begin insert A end insert defendant begin insert who is participating in prefile or preplea
diversion shall not end insert be required to make an admission of guilt as a
prerequisite for begin delete placement in a pretrial diversion program under
this chapter end delete begin insert diversion end insert .

begin delete

(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 district
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 counseling or community service, has
willfully failed to make full restitution or to pay all fees, or has
failed to complete or comply with any other term or condition of
the diversion program, the district 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 delete

begin insert

begin insert SEC. end insert begin insert 8 end insert begin insert . end insert   

end insert

begin insert Section 1001.35 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.35. end insert   

(a) If the court determines that the defendant is
eligible for the misdemeanor diversion program pursuant to this
chapter, the court may only offer postplea diversion.

(b) The court shall not offer postplea diversion if the defendant
has previously diverted under the provisions of this chapter or
Chapter 2.9 (commencing with Section 1001.50) of Title 6 of Part
2.

end insert

begin delete SEC. 8. end delete
begin insert SEC. 9. end insert   

Section 1001.4 of the Penal Code is repealed.

begin delete SEC. 9. end delete
begin insert SEC. 10. end insert   

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

1001.4.  

In a case in which the defendant owes restitution, the
district attorney shall establish procedures for the collection and
distribution of that restitution to the victim or victims.

begin delete SEC. 10. end delete
begin insert SEC. 11. end insert   

Section 1001.6 of the Penal Code is repealed.

begin delete SEC. 11. end delete
begin insert SEC. 12. end insert   

Section 1001.6 is added to the Penal Code, to read:

1001.6.  

(a)  begin delete Any end delete begin insert A end insert 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 delete SEC. 12. end delete
begin insert SEC. 13. end insert   

Section 1001.7 of the Penal Code is repealed.

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

Section 1001.8 of the Penal Code is repealed.

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

Section 1001.9 of the Penal Code is repealed.

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

Section 1001.50 of the Penal Code is repealed.

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

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

1001.50.  

(a) Each county shall establish a begin delete pretrial end delete begin insert misdemeanor end insert
diversion program, administered by the district attorney of the
county, by which the defendant may be offered, at the discretion
of the district begin delete attorney or the superior court of the county, end delete begin insert attorney, end insert
diversion in lieu of sentencing as provided in this chapter. begin insert The
superior court of the county may also offer the defendant postplea
diversion, pursuant to Section 1001.56, in lieu of sentencing as
provided in this chapter. end insert

(b) As used in this chapter, begin delete “pretrial diversion” end delete begin insert the end insert begin insert end insert begin insert following
procedures shall apply: end insert

begin insert (1) end insert begin insert   end insert begin insert “Misdemeanor diversion” end insert 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 insert

(2) “Prefile diversion” is diversion that is offered prior to filing
of the complaint.

end insert begin insert

(3) “Preplea diversion” is diversion that is offered after the
complaint is filed, but prior to the entry of a plea.

end insert begin insert

(4) “Postplea diversion” is diversion that is offered after the
defendant has entered a plea of guilty.

end insert

begin insert

begin insert SEC. 18. end insert   

end insert

begin insert Section 1001.56 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1001.56. end insert   

(a) If the court determines that the defendant is
eligible for the misdemeanor diversion program pursuant to this
chapter, the court may only offer postplea diversion.

(b) The court shall not offer postplea diversion if the defendant
has previously diverted under the provisions of this chapter or
Chapter 2.7 (commencing with Section 1001) of Title 6 of Part 2.

end insert

begin delete SEC. 17. end delete
begin insert SEC. 19. end insert   

begin delete SEC. 17. end delete
begin insert SEC. 19. 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.