BILL ANALYSIS Ó
AB 994
Page 1
Date of Hearing: April 23, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 994 (Lowenthal) - As Amended: April 17, 2013
As Proposed to be Amended in Committee
SUMMARY : Requires each county to establish and maintain a
diversion program, administered by the superior court of the
county. Specifically, this bill :
1)States that a defendant may be offered diversion in lieu of
sentencing, at the discretion of the court.
2)Provides that the pretrial diversion program established by
this bill shall apply to misdemeanor offenses, except as
specified.
3)Exempts specified driving under the influence offenses, or a
misdemeanor offense where any of the following apply:
a) Incarceration would be mandatory upon conviction of the
defendant;
b) Registration in the sex offender registry would be
required upon conviction of the defendant;
c) The granting of probation is prohibited; or,
d) The magistrate determines that the offense shall be
prosecuted as a misdemeanor, rather than a felony.
4)Provides 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.
5)Specifies that the notification shall include all of the
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following:
a) A full description of the procedures for diversion;
b) A clear statement that in lieu of trial, the court may
grant diversion provided that the defendant waives time for
arraignment and plea; and,
c) A clear statement that upon failure to perform a term of
condition under the program, or to comply with a court
order, the prosecuting attorney or the court shall
reinstate proceedings.
6)Limits the period during which diversion is granted to be no
longer than 365 days.
7)Requires every defendant who chooses to participate in the
program to complete each of the following:
a) Enroll in and complete an educational program as
accepted by the court;
b) Make full restitution; and,
c) Comply with any court-ordered protective orders or
stay-away orders.
8)Prohibits any requirement that the defendant make an admission
of guilt as a prerequisite for placement in a pretrial
diversion program.
9)Provides that at the end of the pretrial diversion program,
the defendant shall be ordered back to court for pretrial or,
if in compliance, dismissal.
10)States, 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, or the defendant
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.
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11)Requires all terms and conditions of the program to be met
before the diversion program may be deemed successfully
completed and the defendant's charge or charges dismissed.
12)Provides 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.
13)Specifies, when a defendant's case is diverted, a bail bond
or undertaking, or a deposit held in lieu thereof, shall be
exonerated by the court.
14)Requires when a defendant may owe restitution, the case to be
handled as follows:
a) If, at the time of 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; or,
b) If, at the time of 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.
15)Requires, at the time that restitution is ordered, the
defendant to complete a financial disclosure statement.
16)States at the time that restitution is ordered, the defendant
shall be ordered to pay restitution in full prior to the
scheduled pretrial date.
17)Provides, before a defendant may be deemed to have
successfully completed the diversion program, he or she shall
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pay in full the following costs and fees:
a) The costs of the required educational program, to be
paid directly to the provider of the educational program;
b) The prosecuting attorney's administrative fee in an
amount authorized by the board of supervisors; and,
c) Any fees required by the court as provided in existing
provisions of law related to misdemeanor diversion.
18)States that 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.
19)States that any record filed with the Department of Justice
(DOJ) shall indicate the disposition in those cases diverted.
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. 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.
20)Requires that the defendant be advised that, regardless of
his or her successful completion in the diversion program, the
arrest upon which the case was diverted may be disclosed by
DOJ in response to any peace officer application request and
that he or she is obligated 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.
EXISTING LAW :
1)States that 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. (Penal Code Section 1001.1.)
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2)Excludes specified driving under the influence offenses from
pretrial diversion eligibility. [Penal Code Section
1001.2(a).]
3)Provides that the district attorney of each county shall
review annually any diversion program adopted by the county,
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.
[Penal Code Section 1001.2(b).]
4)Specifies that at no time shall a defendant be required to
make an admission of guilt as a prerequisite for placement in
a pretrial diversion program. (Penal Code Section 1001.3.)
5)Provides that a divertee is entitled to a hearing, as set
forth by law, before his or her pretrial diversion can be
terminated for cause. (Penal Code Section 1001.4.)
6)States 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. (Penal Code Section
1001.7.)
7)Provides that any record filed with the DOJ shall indicate the
disposition in those cases diverted pursuant to these
provisions. 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. 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. [Penal Code Section
1001.9(a).]
8)Requires that the divertee be advised that, regardless of his
or her successful completion of diversion, the arrest upon
which the diversion was based may be disclosed by DOJ in
response to any peace officer application request and that
this section does not relieve him or her of the obligation to
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disclose the arrest in response to any direct question
contained in any questionnaire or application for a position
as a peace officer, as defined. [Penal Code Section
1001.9(b).]
9)States, notwithstanding any other provision of law, this
chapter shall become operative in a county only if the board
of supervisors adopts the provisions of this chapter by
ordinance. [Penal Code Section 1001.50(a).]
a) Provides that 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. [Penal Code Section
1001.50(b).]
b) Defines a "pretrial diversion" as 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. [Penal Code
Section 1001.50(c).]
c) Specifies that this chapter shall apply whenever a case
is before any court upon an accusatory pleading concerning
the commission of a misdemeanor, except as specified, and
it appears to the court that all of the following apply to
the defendant [Penal Code Section 1001.51(a)]:
i) The defendant's record does not indicate that
probation or parole has ever been revoked without
thereafter being completed;
ii) The defendant's record does not indicate that he has
been diverted pursuant to this chapter within five years
prior to the filing of the accusatory pleading which
charges the divertible offense; and,
iii) The defendant has never been convicted of a felony,
and has not been convicted of a misdemeanor within five
years prior to the filing of the accusatory pleading
which charges the divertible offense.
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d) States that this chapter shall not apply whenever the
accusatory pleading charges the commission of a misdemeanor
[Penal Code Section 1001.51(c)]:
i) For which incarceration would be mandatory upon
conviction of the defendant;
ii) For which registration would be required pursuant
to Section 290 upon conviction of the defendant;
iii) Which the magistrate determines shall be prosecuted
as a misdemeanor, rather than a felony;
iv) Which involves the use of force or violence against
a person, with exceptions;
v) For which the granting of probation is prohibited;
or,
vi) Which is a driving offense punishable as a
misdemeanor pursuant to the Vehicle Code.
e) States that diversion under this chapter does not
authorize any pretrial diversion or post-trial program for
any person alleged to have committed a specified driving
under the influence offense. [Penal Code Section
1001.51(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "More than a
dozen counties in California have voluntarily adopted pretrial
diversion programs for misdemeanors. These programs spare
appropriately selected, often first time offenders the stigma
of a criminal record by prompt exposure to community
education, counseling and rehabilitation programs and help
relieve congested courts of some relatively minor
prosecutions. They save substantial sums of money, reduce
recidivism, and help free up jurors from having to serve on
largely inconsequential trials.
"AB 994 would require that misdemeanor pretrial diversion
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programs be established in every California county. It has
the potential to drastically reduce the number of jury trials,
and result in significant savings for both the state and
counties. This will allow District Attorneys to focus on more
serious cases. It will free up critically needed courtrooms
for cases that, because of court closures and contraction
attributed to funding crises, would otherwise take years to
get to trial. It will reduce recidivism. And it will help
jurors avoid missing a week or more of work while sitting
through trials for minor offenses."
2)Legislative History : There are two chapters in the Penal Code
governing misdemeanor diversion programs. The California
Supreme Court in Davis v. Municipal Court (1988) 46 Cal. 3d
64, discusses the legislative history of the two chapters.
"[I]n 1972, the Legislature had adopted California's first
statutorily mandated pretrial diversion program, a program
limited to those who would benefit from drug education,
treatment and rehabilitation. (Citation omitted.) In
creating that initial program, the Legislature itself
prescribed the eligibility requirements for diversion,
providing (1) that only defendants who had been charged with
specifically enumerated drug offenses could be considered for
diversion, and (2) that of the defendants so charged, only
those who satisfied a series of additional designated
prerequisites could qualify for diversion. (Citation
omitted.)
"In the early and mid-1970's, numerous local police departments
and district attorneys throughout California, acting with the
encouragement of grants provided by the federal government,
began implementing experimental local diversion programs in
their own jurisdictions. (Citation omitted.) Shortly
thereafter, serious questions were raised as to the validity
of these locally initiated programs when an Attorney General
opinion suggested that the Legislature's 1972 pretrial drug
abuse diversion legislation had preempted the field. (Citation
omitted.) As a consequence, the funding of some of the local
programs was threatened and other district attorneys, who had
been considering implementing such programs, became reluctant
to go ahead with such plans.
"To meet this problem, the Legislature in 1977 adopted as an
urgency measure the predecessor of the current chapter 2.7.
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The 1977 legislation did not establish a general,
state-mandated diversion program, but rather expressly
declared that the Legislature did not intend to preempt the
pretrial diversion field. While the 1977 legislation
established a number of procedural protections for persons who
participated in local diversion programs, it neither compelled
a local jurisdiction to establish a diversion program nor
limited a local entity's discretion in designing or
implementing the eligibility requirements of such a program.
The legislation did not purport to delegate the power to
institute or design a pretrial diversion program to any
particular local entity or official and included no provision
requiring the district attorney's approval of such a local
program. Local entities which chose to institute experimental
pretrial diversion programs were required to provide annual
reports to the Legislature disclosing various information
regarding 'the implementation, administration and operation of
such program,' including 'the program's general eligibility
criteria for divertees,' 'the name of the county or other
agency or agencies which established such eligibility
criteria,' 'other criteria or standards established for the
program' and 'the offense charged against the divertee.'
(Citation omitted.) The 1977 enactment provided that it would
remain in effect until January 1, 1980; in 1979, the
legislation was extended for an additional two-year period.
(Chapter 775, Statutes of 1979.)
"After evaluating the information generated by the experimental
local diversion programs sanctioned by the 1977 legislation,
the Legislature in 1982 adopted two separate but related
pretrial diversion statutes, the current chapter 2.7 and
chapter 2.9. The revised version of chapter 2.7 continued in
place the general 'local option' structure of the 1977
legislation, retaining the introductory provision clearly
stating the Legislature's intent not to preempt the pretrial
diversion field. (§ 1001.) The 1982 revision of chapter 2.7
did, however, make several significant changes from the former
scheme. First, the 1982 act limited the reach of the chapter
to diversion programs which involved the postponement of
prosecution "of an offense filed as a misdemeanor" (§ 1001.1);
the 1977 act had contained no such restriction and thus had
embraced local programs which authorized both misdemeanor and
felony diversion. (Citation omitted.) Second, the 1982
revision added the section of chapter 2.7 at issue here,
limiting the chapter's application to local diversion programs
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that have been approved by the local district attorney.
"Chapter 2.9, which is not directly at issue here, was enacted
several months after the 1982 revision of chapter 2.7. Like
chapter 2.7, chapter 2.9 is a 'local option' scheme and
applies only to misdemeanor diversion programs. Unlike
chapter 2.7, however, chapter 2.9 sets out a 'model'
misdemeanor diversion program with legislatively prescribed
eligibility criteria which a county board of supervisors may
adopt by ordinance. Like chapter 2.7, however, chapter 2.9
also conditions the implementation of such a diversion program
on the district attorney's approval." [Davis v. Municipal
Court, supra 46 Cal. 3d at pp. 73-75.]
3)Misdemeanor Diversion Programs : Diversion is the suspension
of criminal proceedings for a prescribed time period with
certain conditions. A defendant may not be required to admit
guilt as a prerequisite for placement in a pretrial diversion
program. If diversion is successfully completed, the criminal
charges are dismissed and the defendant may, with certain
exceptions, legally answer that he or she has never been
arrested or charged for the diverted offense. If diversion is
not successfully completed, the criminal proceedings resume,
however a hearing to terminate diversion is required.
Under current law, a local jurisdiction may establish a
misdemeanor diversion program only upon approval of the
district attorney. [Penal Code Section 1001.2(b), Penal Code
Section 1001.50.] However, according to the author, several
counties have not adopted misdemeanor diversion programs.
This bill deletes the requirement that the district attorney
must approve a misdemeanor diversion program in order for the
program to continue, and instead require the superior court of
the county to administer the program. Granting this power to
the judiciary is constitutionally permissible. In discussing
the Legislature's decision to grant district attorneys the
authority to approve local diversion programs after concluding
that this was an not an impermissible delegation of
legislative power to the executive branch, the court stated,
"[w]e do not, of course, suggest that the Constitution
required the Legislature to proceed in this manner. In a
number of other contexts, the Legislature has established the
eligibility criteria for diversion itself and has not left the
policy questions of the design of the program to the district
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attorney. (See, e.g., §§ 1000 et seq. [drug abuse diversion];
1000.6 et seq. [domestic violence diversion]; 1001.20
[diversion of mentally retarded defendants].) In other
states, diversion programs have been implemented by the
judiciary without a prosecutorial veto. (Citation omitted.)"
[Davis v. Municipal Court, supra, 46 Cal. 3d at p. 78.]
4)Exclusions : Under current laws governing misdemeanor
diversion programs, most misdemeanors are eligible for
diversion, except those specifically listed. Specified
driving under the influence offenses are currently excluded
from misdemeanor diversion; this bill retains that exclusion,
and lists other exclusions. These include misdemeanors for
which any of the following apply:
a) Incarceration would be mandatory upon conviction of the
defendant;
b) Registration in the sex offender registry would be
required upon conviction;
c) The granting of probation is prohibited; or,
d) The magistrate determines that the offense should be
punished as a misdemeanor when the offense could be charged
as an alternate misdemeanor-felony offense.
5)Diversion Fees : As a condition of diversion, the court may
require the defendant to pay an administrative fee to cover
the cost of enrollment in a diversion program. [Penal Code
Section 1001.15(a).] This fee may not exceed $300 in
misdemeanor cases (Penal Code Section 1001.16), and may not
exceed the actual cost of the program. Additionally, the
court must impose a diversion restitution fee on diverted
defendants, except diversion of developmentally disabled
defendants. [Penal Code Section 1001.90(a).] This fee is set
at the court's discretion according to the seriousness of the
offense, but it may not be less than $100 or more than $1,000.
[Penal Code Section 1001.90(b).] In setting the amount of
the restitution fee in excess of the $100 minimum, the court
must consider any relevant factors, including, but not limited
to, the defendant's ability to pay, the seriousness and
gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a
result of the crime, and the extent to which any person
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suffered losses as a result of the crime. [Penal Code Section
1001.90(d).] The imposition of this fee is mandatory,
however, the court may waive the fee for compelling and
extraordinary reasons. [Penal Code Section 1001.90(c).]
This bill also adds the requirement that the defendant pay the
prosecuting attorney's administrative fees as authorized by
the board of supervisors. Due to the all of the fees that the
defendant must pay in full, in addition to restitution, prior
to the completion of a diversion program, it may be difficult
for many defendants to successfully complete the program.
6)Hearing to Determine Termination : Under the existing
misdemeanor pretrial diversion statutes, there is a clear
requirement that a defendant is entitled to a hearing before
his or her pretrial diversion can be terminated for cause.
(Penal Code Section 1001.4.) However, this bill amends
existing statutes and does not make clear that a defendant is
entitled to a hearing prior to termination of diversion.
Specifically, this bill deletes the statute that requires a
pre-termination hearing and replaces that requirement with
language that states that "the prosecuting attorney or the
court may reinstate proceedings and set the matter for
pretrial" for specified reasons. The bill also adds that "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." While the second provision
refers to a hearing to determine whether the defendant
performed satisfactorily during the period in which diversion
was granted, it is not clear whether this hearing refers to a
hearing during the pendency of the diversion period where the
court determines termination of diversion for cause, or only a
hearing at the end of the diversion program to determine
whether the underlying charge should be dismissed. Since
there is an ambiguity, the language may need to be clarified.
7)Arguments in Support :
a) The Conference of California Bar Associations (the
sponsor of this bill) states, "Existing law authorizes the
creation of misdemeanor diversion programs and provides a
general framework for their operation, but requires the
adoption of a resolution by the county board of supervisors
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and approval of the local district attorney before it can
take effect. Consequently, misdemeanor diversion is
available in some counties but not others, leading to
different sentences for defendants committing similar
crimes with similar backgrounds. For example, a first
offense for shoplifting in San Francisco will result in
diversion, but such an offense if committed on the other
side of the street in San Mateo County results in
conviction with possible penalties of fine and
imprisonment.
"Although this disparity has been held not to violate equal
protection or the separation of powers (see, e.g., Davis v.
Municipal Court (1988) 46 Cal.3d 64), fairness requires the
equal and consistent application of diversion throughout
the state. As does fiscal good sense, since diversion
programs have been shown to substantially reduce costs in
the longer term. According to the National Association of
Counties, "Effective jail diversion strategies allow
opportunities for people to avoid further involvement in
the criminal justice system." And the less involvement
with the criminal justice system, the less cost.
"Increased misdemeanor diversion would also reduce pressures
on California's jails, an important consideration in the
wake of realignment.
"Misdemeanor diversion is a good idea that should be applied
with uniformity across the state, not on a county by county
basis dependent upon the approval of often a single
individual. AB 994 would help achieve that uniformity, and
the benefits that come with it."
b) The California Judges Association provides their support
for the bill because it will "potentially reduce
misdemeanor jury trials; reduce recidivism; and . . .
prevent, where possible, first time offenders from being
made unemployable as a consequence of what otherwise would
be a criminal conviction."
8)Argument in Opposition : The California District Attorneys
Association argues, "Current law allows district attorneys to
operate pretrial diversion programs at their discretion. The
decision to use this type of dispositional alternative is best
placed with the district attorney and this bill would
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eliminate his or her discretion in that regard.
"Additionally, we take issue with requiring this type of program
in every county because the bill specifies that a defendant
shall not be required to make an admission of guilt as a
prerequisite for placement. Pre-plea diversion is fraught
with difficulty as it often results in aged prosecutions that
are difficult to prosecute when the defendant fails
diversion."
9)Related Legislation : SB 513 (Hancock) provides that in any
case where a person successfully completes a diversion program
administered by a prosecuting attorney in lieu of filing an
accusatory pleading, the person may petition the superior
court that would have had jurisdiction over the matter for an
order to seal the records of the arresting agency and related
court files and records, and the court may issue that order if
the court finds that doing so will be in furtherance of
justice. SB 513 is pending hearing by the Senate Committee on
Public Safety.
10)Prior Legislation :
a) AB 2606 (Emmerson), Chapter 264, Statutes of 2008,
increased processing fees and authorized inclusion of
returned check fees in the processing fees, and increased
the allowable aggregate total to be collected under the
existing bad check diversion program.
b) AB 2199 (Harman), of the 2005-06 Legislative Session,
would have established a pretrial diversion education
program for persons arrested for nonviolent misdemeanor or
felony firearms offenses. AB 2199 was never heard by this
Committee.
c) AB 1956 (Wolk), Chapter 290, Statutes of 2004, expanded
the application of the existing statute authorizing
diversion for mentally ill defendants in certain
misdemeanor cases to apply to persons with a cognitive
developmental disability.
d) SB 599 (Perata), Chapter 792, Statutes of 2003,
authorizes a court to order the sealing of records of the
arresting agency and related court files with respect to a
person diverted pursuant to a drug diversion program or
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admitted to a deferred entry of judgment program for
specified drug offenders.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (Sponsor)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Judges Association
Drug Policy Alliance
Legal Services for Prisoners with Children
National Association of Social Workers - California Chapter
Taxpayers for Improving Public Safety
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744