BILL ANALYSIS Ó
AB 994
Page 1
Date of Hearing: May 15, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 994 (Lowenthal) - As Amended: April 29, 2013
Policy Committee: Public
SafetyVote: 4-2
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill requires each county to establish and maintain a
misdemeanor pre-trial diversion program, administered by the
superior court of the county, by which a defendant may be
offered diversion in lieu of sentencing, at the discretion of
the court.
(Current law authorizes counties to create misdemeanor diversion
programs upon approval of the district attorney.)
FISCAL EFFECT
1)Unknown significant annual GF costs, potentially in excess of
$5 million, for court administrative staff, training, and
information system programing. This assumes 80
personnel-year-equivalents in 58 counties at $65,000 per
capita. In addition, there would be related pretrial and
dismissal hearings and required court orders regarding bail
exoneration and reports to the Department of Justice regarding
dispositions.
2)Unknown, potentially significant annual GF savings,
potentially in excess of $10 million, to the extent pre-trial
diversion programs successfully reduce court time. Based on
almost 1.3 million misdemeanor filings in 2012, and assuming
only about 10% actually go to trial, if 1% of the 10% (1,300
misdemeanants) successfully complete diversion, avoiding, on
average, 16 net hours of court time, the annual savings would
be in the range of $10 million.
This potential savings estimate would be offset by several
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counties currently using pre-trial diversion.
SUMMARY CONTINUED
Specifically, this bill:
1)Excludes specified driving under the influence offenses (as
does current law), or any offense where (a) incarceration
would be mandatory upon conviction; (b) registration as a sex
offender would be required; (c) the granting of probation is
prohibited; or (d) when the offense could be prosecuted as a
felony.
2)Specifies at the time of filing a criminal complaint, the
prosecuting attorney shall determine whether the defendant is
eligible for the diversion program.
3)Prohibits any requirement that the defendant admit guilt as a
prerequisite for diversion, as does current law.
4)Limits the period during which diversion is granted to 365
days and requires every defendant who participates in the
program to (a) complete an educational program as accepted by
the court; (b) make full restitution, as specified; and (c)
comply with any court-ordered protective orders.
5)Provides that at the end of the diversion program, the
defendant return to court for pretrial or, if in compliance,
dismissal. If prior to the dismissal hearing, the prosecutor
files charges for the new offense during the diversion period,
or the defendant fails to successfully complete the diversion
requirements the prosecutor or the court may reinstate
proceedings. 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.
6)Requires before a defendant may successfully completed the
diversion program, the defendant to pay all program costs.
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COMMENTS
1)Rationale . 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
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)Diversion is the suspension of criminal proceedings for a
prescribed time 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, criminal charges are dismissed and the defendant
may, with certain exceptions, 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.
This bill requires, rather than authorizes, a diversion
program, and 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
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court of the county to administer the program.
3)Implementation and cost concerns .
a) Mandating every court to have a diversion program
creates significant statewide costs in terms of personnel
and administration, and creates a situation in which courts
must implement and administer a program that not every
court may wish to implement and/or administer.
b) By deleting the section of current law that requires an
affirmative vote of the board of supervisors, this bill
creates a state-reimbursable local mandate regarding any
costs not covered by charges to the defendant.
c) This proposal requires the defendant to pay the full
cost of diversion, including the prosecutor's costs, a
court-ordered diversion fee, the cost of the educational
program, and restitution. How many low-level misdemeanor
defendants have the ability to cover these costs, which
could be in excess of $1,000?
d) The education requirement in the bill is not clear. It
requires every defendant who participates in the diversion
program to "enroll in and complete an educational program
as accepted by the court." It is not clear whether or why
an education component is needed, or whether such a
requirement, given the cost and the time, could create a
disincentive for defendants to participate in diversion.
4)Support. 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
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?.
"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."
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5)Opposition . The California District Attorneys Association
states, "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 eliminate his
or her discretion in that regard."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081