Amended in Senate September 6, 2013

Amended in Senate September 3, 2013

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 begin delete add Section 1385.2 to, and to end delete add and repeal Chapter 2.85 (commencing with Section 1001.41) of Title 6 of Part 2 of the Penal Code, relating to diversion programs.

LEGISLATIVE COUNSEL’S DIGEST

AB 994, as amended, Lowenthal. Postplea 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. 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 prosecuting attorney to establish a postplea misdemeanor diversion program within his or her jurisdiction and would authorize either the prosecuting attorney or the superior court to offer diversion to a first time misdemeanor defendant, as specified. The program would specify the administrative procedures and who would be eligible for the postplea misdemeanor diversion program. The bill would repeal these provisions as of January 1, 2019. By requiring diversion programs in local jurisdictions, 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.  

Chapter 2.85 (commencing with Section 1001.41)
is added to Title 6 of Part 2 of the Penal Code, to read:

 

Chapter  2.85. Postplea Misdemeanor Diversion

 

1001.41.  

(a) Each prosecuting attorney shall, within his or her
jurisdiction, establish a misdemeanor diversion program by which
a first time misdemeanor offender defendant may be offered, at
the discretion of the prosecuting attorney, diversion in lieu of
sentencing as provided in this chapter. The superior court of the
county where the underlying offense occurred may also offer the
defendant diversion in lieu of sentencing as provided in this
chapter.

(b) As used in this chapter, “postplea misdemeanor diversion”
means the postponing or terminating of sentencing for a
misdemeanor charge against a defendant who has entered a plea
of guilty or nolo contendere and who meets the criteria in Section
1001.42 upon completion of a diversion program. Postplea
misdemeanor diversion may not be used in officer hearings,
administrative hearings, mediation, dispute resolution programs,
or restorative justice programs.

(c) This chapter shall apply to first-time misdemeanor
defendants, except as provided in paragraph (2) of subdivision (b)
of Section 1001.42, in order to reduce the stigma that is often
associated with a criminal record and to increase the likelihood
that a defendant will be able to obtain employment following the
successful completion of diversion in lieu of sentencing, as
provided in this chapter.

(d) It is the intent of the Legislature that this chapter not 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.

1001.42.  

(a) The postplea misdemeanor diversion program
established by this chapter may be offered to a defendant, alleged
in an accusatory pleading to have committed a misdemeanor, at
his or her first appearance or within 20 calendar days of his or her
first appearance, whichever occurs later, unless a jury has been
empaneled, or except as specified in subdivision (b).

(b) Postplea misdemeanor diversion under this chapter shall not
be offered when any of the following are met:

(1) When the accusatory pleading charges the commission of a
misdemeanor for which any of the following apply:

(A) Incarceration would be mandatory upon conviction of the
defendant.

(B) Registration would be required upon conviction pursuant
to Section 290.

(C) The granting of probation is prohibited.

(D) The magistrate determines that the offense shall be
prosecuted as a misdemeanor pursuant to paragraph (5) of
subdivision (b) of Section 17.

(E) (i) Force or violence against a person or peace officer is
charged.

(ii) The unlawful use, possession, sale, or transfer of a dangerous
weapon, firearm, or ammunition is charged.

(F) The victim is a person identified in Section 6211 of the
Family Code or the victim is a begin delete minor end delete begin insert minor, end insert or a dependent adult
begin insert or an elder end insert pursuant to Section 368.

(G) A violation of Section 23152 begin insert or 23153 end insert of the Vehicle Code
is charged.

(H) A violation of subdivision (c) of Section 192 or subdivision
(b) of Section 191.5 is charged.

(I) A violation of Section 186.22 is charged.

begin delete

(J) A violation of Section 387 is charged.

end delete begin delete

(K) A violation of Section 6425 of the Labor Code is charged.

end delete begin delete

(L)

end delete

begin insert ( end insert begin insert J) end insert  A violation of begin insert an end insert environmental begin delete crimes end delete begin insert crime or a workplace
safety crime end insert is charged, including, but not limited to, begin insert an end insert alleged
begin delete violations end delete begin insert violation end insert of subdivision (a) of Section 5650 of the Fish
and Game Code, Section 8670.64 of the Government Code, Section
25507 of the Health and Safety Code, begin delete and end delete begin insert Section 6423 or 6425
of the Labor Code, Section 387 of this code, or end insert Section 13387 of
the Water Code.

(2) The defendant has been convicted of any misdemeanor in
the previous 10 years, a misdemeanor involving force or violence,
or a felony.

(3) The defendant has previously been diverted pursuant to this
chapter or any other provision of law.

(4) The defendant is a partnership, firm, association, corporation,
limited liability company, or other legal entity.

(c) Nothing in this section is intended to preclude a defendant
from being offered postplea misdemeanor diversion pursuant to
this chapter when charged with a violation of Section 415.

(d) The prosecuting attorney may determine whether the
defendant is eligible for postplea misdemeanor diversion. If the
prosecuting attorney determines that the defendant is eligible for
postplea misdemeanor diversion, the prosecuting attorney shall
notify the defendant’s attorney or the defendant if he or she is
appearing pro per of that determination.

(e) The notification required by subdivision (d) of this section
and subdivision (b) of Section 1001.44 shall include both of the
following:

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

(2) A clear statement that failure to perform a term or condition
of the program or to comply with a court order will result in
sentencing upon the original guilty or nolo contendere plea as if
diversion had not occurred.

1001.43.  

(a) A defendant who chooses to participate in the
postplea misdemeanor diversion program under this chapter shall
be required to complete each of the following in order to be deemed
to have successfully completed his or her postplea misdemeanor
diversion program:

(1) Enroll in and complete at least one of the following programs
approved by the prosecuting attorney:

(A) Counseling.

(B) Community service.

(2) Make full restitution.

(3) Comply with any court-ordered protective order, stay-away
order, or order prohibiting firearm possession for the time period
that would have been imposed upon conviction of the underlying
charge.

(4) Remedy any violation of any law, code, or regulation that
was the basis for consideration of the accusatory pleading.

1001.44.  

(a) (1) If the prosecuting attorney determines that a
defendant is not eligible for the postplea misdemeanor diversion
program, and if the defendant has entered a guilty plea or a plea
of nolo contendere, the court may, upon setting forth reasons on
the record for overruling the determination of the prosecuting
attorney, independently offer the defendant postplea misdemeanor
diversion pursuant to this chapter. Judicial plea bargaining is
prohibited.

(2) If no official court reporter is present and no electronic
recording equipment is used, the court shall have the reasons for
overruling the determination of the prosecuting attorney pursuant
to paragraph (1) entered in the minutes of the court.

(b) If the court determines that the defendant is eligible for
postplea misdemeanor diversion, the prosecuting attorney shall
notify the defendant’s attorney or the defendant if he or she is
appearing pro per of that determination.

(c) Postplea misdemeanor diversion offered by the court under
this section shall conform to the requirements of Section 1001.42.

(d) A court’s order granting postplea misdemeanor diversion
under this section shall be appealable pursuant to paragraph (2),
(6), or (7) of subdivision (a) of Section 1466.

1001.45.  

(a) If a defendant owes restitution, the postplea
misdemeanor diversion program to which the defendant is referred
pursuant to this chapter shall establish procedures for the collection
and distribution of restitution to the victim or victims, and begin delete the
defendant shall end delete provide proof of payment to the court.

(b) The procedures established pursuant to this section shall
include a provision that allows the administrator of the postplea
misdemeanor diversion program to, if the administrator determines
there to be good cause, request an extension whereby the defendant
would be granted additional time to repay the amount of restitution
ordered by the court.

1001.46.  

(a) In any case in which a defendant has fulfilled the
conditions of his or her postplea misdemeanor diversion pursuant
to this chapter, if the defendant is not serving a sentence for an
offense, is not on probation for an offense, and is not charged with
the commission of an offense, the court shall, pursuant to Section
begin delete 1385.2, end delete begin insert 1001.485, end insert strike the defendant’s plea of guilty or nolo
contendere and dismiss the action against the defendant. The
defendant, except as noted below, shall thereafter be released from
all penalties and disabilities resulting from the offense of which
he or she was granted postplea misdemeanor diversion, except as
provided in Section 13555 of the Vehicle Code. 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 and a record pertaining to an arrest resulting in a
successful completion of a postplea misdemeanor 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 except as specified in subdivision (c).
However, in any subsequent prosecution of the defendant for
another offense, the prior conviction may be pleaded and proved
and shall have the same effect as if postplea misdemeanor diversion
had not been granted or the accusation dismissed.

(b) Upon the dismissal of the defendant’s accusations, the arrest
upon which the case was diverted shall be deemed to have never
occurred. The defendant shall be informed of his or her right, if
any, to petition for a certificate of rehabilitation and pardon.

(c) (1) The defendant shall be informed that the dismissal does
not relieve him or her of the obligation to disclose the conviction
in response to a direct question contained in a questionnaire or
application for public office, for licensure by a state or local
agency, or for contracting with the California State Lottery
Commission.

(2) Dismissal of an accusation pursuant to this section does not
permit a person to own, possess, or have in his or her custody or
control a firearm, or prevent his or her conviction under Chapter
2 (commencing with Section 29800) of Division 9 of Title 4 of
Part 6.

(3) Dismissal of an accusation underlying a conviction pursuant
to this section does not permit a person to hold public office if a
conviction for that offense would otherwise prohibit the holding
of that public office.

(4) The defendant shall be advised that, regardless of his or her
successful completion of a postplea misdemeanor diversion
program, the arrest upon which the case was diverted may be
disclosed by the Department of Justice in response to a peace
officer application request and that, notwithstanding subdivision
(a), this section does not relieve the defendant of the obligation to
disclose the arrest in response to a direct question contained in a
questionnaire or application for a position as a peace officer, as
defined in Section 830, or for a criminal justice agency, as defined
in Section 13101.

1001.47.  

Nothing in this chapter is intended to limit the rights
of a victim under Section 28 of Article I of the California
Constitution.

1001.48.  

(a) A postplea diversion program in existence as of
the effective date of this chapter shall be exempt from compliance
with the provisions of this chapter.

(b) Notwithstanding subdivision (a), the superior court of the
county in which the underlying offense occurred may offer the
defendant postplea misdemeanor diversion pursuant to this chapter.
If the defendant is diverted pursuant to this chapter, the program
shall comply with the provisions of this chapter.

begin insert

begin insert 1001.485. end insert   

The judge or magistrate shall, upon his or her motion
or upon the petition of the prosecuting attorney, and in the
furtherance of justice, order an action to be dismissed if the
defendant has fulfilled the conditions of his or her postplea
misdemeanor diversion pursuant to this chapter.

end insert

1001.49.  

This chapter shall remain in effect only until January
1, 2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2019, deletes or extends
that date.

begin delete

SEC. 2.  

Section 1385.2 is added to the Penal Code, to read:

1385.2.  

The judge or magistrate shall, upon his or her motion
or upon the petition of the prosecuting attorney, and in the
furtherance of justice, order an action to be dismissed if the
defendant has fulfilled the conditions of his or her postplea
misdemeanor diversion pursuant to Chapter 2.85 (commencing
with Section 1001.41) of Title 6 of Part 2 of the Penal Code.

end delete

begin delete SEC. 3. end delete
begin insert SEC. 2. 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.