BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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9
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AB 994 (Lowenthal)
As Amended June 25, 2013
Hearing date: July 2, 2013
Penal Code
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MISDEMEANOR DIVERSION
HISTORY
Source: Conference of California Bar Associations
Prior Legislation: SB 513 (Hancock) - 2013, Pending in Assembly
Appropriations
Support: ACLU of California; American Probation and Parole
Association; California Attorneys for Criminal
Justice; California Judges Association; Center on
Juvenile and Criminal Justice; Drug Policy Alliance;
Legal Services for Prisoners with Children; National
Association of Social Workers, California Chapter;
Taxpayers for Improving Public Safety
Opposition:<1>Anaheim City Attorney; California District
Attorneys Association: California Narcotic Officers'
Association; California Police Chiefs Association; Los
Angeles City Attorney; Los Angeles County District
Attorney; San Diego County District Attorney; Ventura
County District Attorney
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<1> The letters in opposition noted in this analysis were
written prior to the most recent amendments to the bill.
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Assembly Floor Vote: Ayes 47 - Noes 29
KEY ISSUES
SHOULD A COURT BE AUTHORIZED TO PLACE SPECIFIED DEFENDANTS ON
POST-PLEA MISDEMEANOR DIVERSION?
SHOULD A COURT BE AUTHORIZED TO PLACE SPECIFIED DEFENDANTS ON
POST-PLEA MISDEMEANOR DIVERSION?
SHOULD EACH COUNTY BE DIRECTED TO ESTABLISH A MISDEMEANOR DIVERSION
PROGRAM, WITH THE DISTRICT ATTORNEY HAVING SOLE DISCRETION TO
DETERMINE WHICH DEFENDANTS WOULD ACTUALLY BE OFFERED DIVERSION?
SHOULD PERSONS CONVICTED OF SPECIFIED OFFENSES - INCLUDING DOMESTIC
VIOLENCE, CRIMES AGAINST MINORS, DRIVING UNDER THE INFLUENCE, AND
CRIMES FOR WHICH SEX OFFENDER REGISTRATION IS REQUIRED - BE EXCLUDED
FROM DIVERSION UNDER THIS BILL?
PURPOSE
The purposes of this bill are to 1) direct counties to establish
specified misdemeanor diversion programs, with sole discretion
given the district attorney to determine which persons shall be
offered participation; 2) authorize the court to place specified
misdemeanor defendants in postplea diversion programs; 3)
require a diversion participant to complete either counseling,
community service or an educational program; and 4) exclude
persons convicted of specified driving under the influence
crimes, domestic violence and related offenses, crimes against
minors, crimes for which sex offender registration is required,
an alternate felony-misdemeanor deemed to be a misdemeanor by a
magistrate and any offense for which incarceration is mandatory.
Existing law includes various diversion programs under which a
person arrested for and charged with a crime is diverted from
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the prosecution system and placed in a program of rehabilitation
or restorative justice. Upon successful completion of the
program, the charges and underling arrest are deemed to not have
occurred, with specified exceptions. Generally, diversion
programs are created and run at the discretion of the district
attorney. Pre-plea, true drug diversion programs are
implemented upon the agreement of the district attorney, the
court and the public defender. Some examples of diversion
follow:
Pre-plea diversion for drug possession. (Pen. Code
1000.5.)
Misdemeanor diversion, excluding driving under the
influence, crimes requiring registration as a sex offender,
crimes involving violence, as specified. (Pen. Code §§
1001, 1001.50-1001.55.)
Bad check diversion. (Pen. Code §1001.60.)
Existing law defines misdemeanor diversion thus: "[P]retrial
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." (Pen. Code
§ 1001.1.)
Existing law excludes specified driving under the influence
offenses from pretrial diversion eligibility. (Pen. Code §
1001.2, subd. (a).)
Existing law provides that the district attorney of each county
shall review annually any diversion program adopted by the
county. The district attorney must approve the program and each
participant. (Pen. Code § 1001.2, subd. (b).)
Existing law 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. (Pen. Code §
1001.3.)
Existing law provides that a diversion participant is entitled
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to a hearing before his or her pretrial diversion can be
terminated for cause. (Pen. Code § 1001.4.)
Existing law states if the participant has performed
satisfactorily during the period of diversion, the criminal
charges shall be dismissed. (Pen. Code § 1001.7.)
Existing law provides that any record filed with the Department
of Justice (DOJ) shall indicate that the defendant was diverted.
Upon successful completion of a diversion program, the
underlying arrest shall be deemed to have never occurred. The
successful participant may indicate that he or she was not
arrested or diverted for the offense, except as specified. The
record of an arrest underlying a successful diversion program
shall not be used so as to deny any employment, benefit,
license, or certificate. (Pen. Code § 1001.9, subd. a).
Existing law requires that the diversion participant shall be
advised that, regardless of his or her successful completion of
diversion, the underlying arrest may be disclosed by DOJ as
concerns any peace officer application request and that the
successful participant must disclose the arrest in response to
any direct question in any application for a position as a peace
officer. (Pen. Code § 1001.9, subd. (b).)
Existing law provides that a specified diversion program shall
be implemented operative only if the board of supervisors adopts
the statutory provisions as an ordinance. (Pen. Code § 1001.50,
subd. (a).)
Existing law specifies that diversion may be granted only if it
appears to the court that all of the following apply:
The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed;
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,
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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. (Pen. Code § 1001.51,
subd. (a).)
Existing law states that diversion shall not be granted where
which any of the following apply:
The penalty for the crime includes mandatory
incarceration;
The defendant is required to register as a sex offender;
The offense is an alternate felony-misdemeanor that the
magistrate has deemed to be a misdemeanor;
The crime involves the use of force or violence against
a person, with exceptions;
Probation is prohibited;
The offense involves operation of a motor vehicle and is
punished as a misdemeanor pursuant to the Vehicle Code.
(Pen. Code § 1001.51, subds. (b)-(c).);
The offense involves driving under the influence.
This bill requires the prosecutor to approve any person granted
pretrial diversion.
This bill authorizes the court, in lieu of imposition of
sentence, to offer and grant postplea diversion.
This bill provides that a diversion candidate shall receive a
full description of the program and be specifically informed of
the following:
The diversion participant must waive statutory time
limits for arraignment and plea.
Failure to perform any condition of the program or
comply with any court order will result in reinstatement of
proceedings.
This bill requires every diversion participant to do the
following:
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Enroll in and complete an educational, counseling or
community service program as accepted by the court;
Make full restitution; and,
Comply with any court-ordered protective orders or
stay-away orders.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
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went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
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1. Need for this Bill
According to the author:
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. 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.
Fairness requires the equal and consistent application
of diversion throughout the state. AB 994 establishes
misdemeanor diversion programs in every California
county, to be administered by district attorneys,
through which defendants may be offered-at the
discretion of the district attorney or the
court-diversion in lieu of sentencing for misdemeanor
offenses.
Misdemeanor diversion spares appropriately selected,
often first time offenders the stigma of a criminal
record by prompt exposure to community education,
counseling or rehabilitation, while helping to relieve
congested courts of some relatively minor
prosecutions.
An expansion of diversion programs 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
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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. History of California Diversion Programs
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, discussed the legislative
history of the two chapters.
In 1972, the Legislature adopted California's first statutorily
mandated pretrial diversion program to provide drug education
and rehabilitation. An eligible defendant must have been
charged with a specifically enumerated drug offense and met
additional requirements. Police departments and district
attorneys across the state, often funded by federal grants,
began implementing local diversion programs. However, an
opinion of the Attorney General indicated that local programs
were preempted by the 1972 state law. These programs became
difficult to fund and district attorneys became reluctant to
implement them.
In 1977, the Legislature expressly declared that it did not
intend to preempt local pretrial diversion programs. The
Legislature established procedural protections for participants
in local diversion programs, but left the design and
implementation of diversion to local entities. The legislation
did not address approval by the prosecutor. The1977 legislation
required annual reports about the implementation, administration
and operation of each program. The statute sunset in 1982.
The court in Davis explained the next development in diversion
law:
The Legislature in 1982 adopted two separate but
related pretrial diversion statutes. Chapter 2.7<2>
continued ? the general 'local option' structure of
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<2> Penal Code §§1001-1001.9.
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the 1977 legislation, retaining the introductory
provision clearly stating the Legislature's intent not
to preempt the pretrial diversion field. (§ 1001.)
The 1982 revision ? made 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). ?Second,
the 1982 revision limited the chapter's application to
local diversion programs that have been approved by
the local district attorney.
Chapter 2.9<3> 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. Prosecutorial Power to Charge Crimes and Judicial Power to
Sentence
Diversion and deferred entry of judgment programs exist at the
somewhat amorphous boundary between prosecutorial and judicial
power. The issue of what distinguishes the sole power of a
prosecutor to charge crimes from the sole power of a court to
sentence has arisen many times in California. Generally
speaking, the judicial branch cannot interfere with the
prosecutor's discretion to charge a person with a crime and the
prosecutor cannot interfere with the court's power to impose or
craft a disposition after charges have been filed.
In 2005, the court in People v. Thomas (2005) 35 Cal.4th 635,
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<3> Penal Code §§ 1001.50-1001.55
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described the modern development of the issue:
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In People v. Tenorio (1970) 3 Cal.3d 89, 91-95, we
held that a statute requiring a trial court to secure
a prosecutor's consent to dismiss an allegation of a
prior conviction violates the ? separation of powers
clause by improperly invading the constitutional
province of the judiciary? "When the decision to
prosecute has been made, the process which leads to
acquittal or to sentencing is fundamentally judicial
in nature. ?The judicial power is compromised when a
judge ? wishes to exercise the power to dismiss but
finds that?he must bargain with the prosecutor." (Id.
at p. 94.)
?In Esteybar v. Municipal Court (1971) 5 Cal.3d 119,
122 [we] held that a statute requiring a magistrate
to secure a prosecutor's consent to determine that [a
wobbler]? is a misdemeanor?violates the separation of
powers doctrine. "Since the exercise of a judicial
power may not be conditioned upon the approval of
either the executive or legislative branches of
government, requiring the district attorney's consent
in determining the charge on which a defendant shall
be held to answer violates the doctrine of separation
of powers." (Esteybar v. Municipal Court, supra, at p.
127.)
?[I]n People v. Navarro (1972) 7 Cal.3d 248, [258-259]
we held that requiring a trial court to obtain a
prosecutor's consent to order a posttrial commitment
to a narcotic?rehabilitation facility violates the
separation of powers doctrine. ?The Legislature, of
course, by general laws can control eligibility for
probation, parole and the term of imprisonment, but it
cannot abort the judicial process by subjecting a
judge to the control of the district attorney.
?[I]n People v. Superior Court (On Tai Ho) (1974) 11
Cal.3d 59, 61, we held that a statute requiring a
court to get a prosecutor's consent to order pretrial
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diversion to a narcotic ?rehabilitation program
violates the separation of powers doctrine: "[W]hen
the jurisdiction of a court has been properly invoked
by the filing of a criminal charge, the disposition of
that charge becomes a judicial responsibility. ? With
the development of more sophisticated responses to the
wide range of antisocial behavior traditionally
subsumed under the heading of 'crime,' alternative
means of disposition have been confided to the
judiciary." (Id. at p. 66.)
Thereafter, in Davis v. Municipal Court (1988) 46
Cal.3d 64 this court held that a local rule precluding
the trial court from diverting persons charged with
felonies to a drug treatment program, while permitting
diversion for those charged with misdemeanors, did not
violate the separation of powers doctrine. ?[T]he
exercise of prosecutorial discretion before the filing
of charges does not improperly subordinate the
judicial branch to the executive branch in violation
of the state Constitution. [Citation omitted.]
Recently? Manduley v. Superior Court (2002) 27 Cal.4th
537?..upheld the constitutionality of an initiative
[giving] the prosecutor discretion to file charges
against some juveniles directly in criminal court [.]
?A statute conferring upon prosecutors the discretion
to make certain decisions before the filing of
charges? is not invalid simply because the
prosecutor's exercise of such charging discretion
necessarily affects the [court's] dispositional
options." (Id. at p. 553, internal quotation marks
omitted.)
This bill, as amended on June 25, 2013, authorizes the court to
grant a defendant postplea diversion, in lieu of sentencing.
Arguably, such authority falls squarely within the court's
sentencing function and power, as discussed in the cases noted
above. Further, under Penal Code Section 1385, a court has the
power to dismiss a charge or allegation in the interests of
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justice, unless the Legislature has clearly prohibited such an
order. (People v. Superior Court (Romero) (1996) 13 Cal.4th
497.) The court must state its reasons on the record for
dismissing an action, in whole or in part, pursuant to Section
1385.
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