BILL ANALYSIS Ó
AB 994
Page 1
ASSEMBLY THIRD READING
AB 994 (Lowenthal)
As Amended May 24, 2013
Majority vote
PUBLIC SAFETY 4-2 APPROPRIATIONS 12-5
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|Ayes:|Ammiano, Jones-Sawyer, |Ayes:|Gatto, Bocanegra, |
| |Mitchell, Quirk | |Bradford, |
| | | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Hall, |
| | | |Ammiano, Pan, Quirk, |
| | | |Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Melendez, Waldron |Nays:|Harkey, Bigelow, |
| | | |Donnelly, Linder, Wagner |
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SUMMARY : Requires each county to establish a pretrial diversion
program, administered by the district attorney of the county.
Specifically, this bill :
1)States that a defendant may be offered diversion in lieu of
sentencing, at the discretion of the district attorney or the
superior court of the county.
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
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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 district attorney shall
determine whether the defendant is eligible for the
misdemeanor diversion program.
5)Specifies 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.
6)States if the district attorney determines that the defendant
is eligible for the program, the district attorney shall
advise the defendant and his or her attorney of that
determination.
7)Specifies that the notification shall include all of the
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 district attorney or the court shall reinstate
proceedings.
8)Limits the period during which diversion is granted to be no
longer than 365 days.
9)Requires every defendant who chooses to participate in the
program to complete each of the following:
a) Enroll in and complete counseling or community service,
or both, as accepted by the district attorney;
b) Make full restitution; and,
c) Comply with any court-ordered protective orders or
stay-away orders.
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10)Prohibits any requirement that the defendant make an
admission of guilt as a prerequisite for placement in a
pretrial diversion program.
11)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.
12)States, 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 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.
13)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.
14)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.
15)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.
16)Requires, in cases where a defendant owes restitution, the
district attorney to establish procedures for the collection
and distribution of that restitution to the victim or victims.
17)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
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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.
18)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.
2)Excludes specified driving under the influence offenses from
pretrial diversion eligibility.
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.
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.
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.
6)States if the divertee has performed satisfactorily during the
period of diversion, the criminal charges shall be dismissed
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at the end of the period of diversion.
7)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.
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.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1) Unknown, potentially significant annual General Fund
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% successfully complete diversion,
avoiding, on average, 16 net hours of court time, the
annual savings would be in the range of $10 million.
1) Negligible state administrative costs.
COMMENTS : 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.
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"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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0000902