BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 994 (Lowenthal) - Misdemeanor diversion programs.
Amended: June 25, 2013 Policy Vote: Public Safety 5-2
Urgency: No Mandate: Yes
Hearing Date: August 30, 2013
Consultant: Jolie Onodera
SUSPENSE FILE. AS AMENDED.
Bill Summary: AB 994 would require each county to establish and
maintain a misdemeanor diversion program, to be administered by
the district attorney of the county, and would authorize the
district attorney to offer diversion to specified defendants.
This bill would also authorize the superior court to offer
postplea diversion, as specified.
Fiscal Impact (as approved on August 30, 2013):
One-time and ongoing potentially significant
state-reimbursable costs (General Fund) for the development
and maintenance of a misdemeanor diversion program by all
prosecuting attorneys. Previously, county programs became
operative subject to an ordinance adopted by the county board
of supervisors.
Unknown, potentially significant state-reimbursable costs
(General Fund) to local entities to administer the misdemeanor
diversion programs, provide specified notification to eligible
diversion program participants, and establish procedures for
the collection and distribution of restitution to victims.
Unknown, potentially major trial court (General Fund*), local
jail (Local Revenue Fund) and state prison (General Fund)
savings to the extent the diversion programs successfully
divert defendants from prosecution, jail and/or future prison
sentences.
*Trial Court Trust Fund
Background: Existing law establishes various diversion programs
under which a person arrested and charged with a crime is
diverted from the prosecution system and placed in a program of
rehabilitation or restorative justice. Upon successful
completion of the program, the charges and underlying arrest are
deemed not to have occurred, with specified exceptions.
AB 994 (Lowenthal)
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Generally, diversion programs are created and utilized at the
discretion of the district attorney.
Existing law defines misdemeanor diversion, or pretrial
diversion, as "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 (PC)
§1001.1)
Current law excludes specified driving under the influence
offenses from pretrial diversion eligibility and provides that
the district attorney of each county shall review annually any
diversion program adopted by the county. Under current law, the
district attorney must approve the program and each participant.
Current law provides that a specified diversion program shall be
operative only if the county board of supervisors adopts the
statutory provisions by ordinance.
Proposed Law: This bill would require each county to establish a
misdemeanor diversion program, to be administered by the
district attorney of the county, by which a defendant may be
offered, at the discretion of the district attorney, diversion
in lieu of sentencing. In addition, this bill:
Requires the district attorney to approve any person
granted pretrial diversion.
Provides that the misdemeanor diversion program shall
not apply to a program for the treatment of problem
drinking or alcoholism utilized for persons convicted of
driving under the influence.
Provides that diversion is not an option for any
misdemeanor charges in which any of the following apply:
o Incarceration would be mandatory upon
conviction.
o Registration as a sex offender would be
required upon conviction.
o The granting of probation is prohibited.
o The magistrate determines that the offense
shall be prosecuted as a misdemeanor, as specified.
o The victim is a minor or a victim of domestic
violence.
Authorizes the court, in lieu of imposition of sentence,
to offer and grant postplea diversion (offered after the
defendant has entered a guilty plea).
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Provides that the district attorney shall advise the
defendant, and the defendant's attorney of the
determination and provide the diversion candidate with a
full description of the program and specifically inform the
candidate of the following:
o The diversion participant must waive statutory
time limits for arraignment and plea.
o Failure to perform any condition of the
program or comply with any court order will result in
reinstatement of proceedings.
Requires every diversion participant to do the
following:
o Enroll in and complete an educational,
counseling or community service program as accepted by
the court.
o Make full restitution.
o Comply with any court-ordered protective
orders or stay-away orders.
Staff Comments: By mandating each county establish a misdemeanor
diversion program to be administered by the district attorney of
the county, the provisions of this bill could incur one-time
potentially significant state-reimbursable costs (General Fund)
for the development of a program in each county. Under existing
law, operation of these programs is subject to an ordinance
adopted by the county board of supervisors. While a defendant
may be offered diversion at the discretion of the district
attorney, it is unknown whether the ongoing costs of
administering the mandated diversion program would also be
subject to reimbursement by the state. Any such determination
would be made by the Commission on State Mandates subsequent to
a test claim filed by a specified county.
This bill mandates duties on district attorneys which could
result in potentially significant state-reimbursable costs for
administering the misdemeanor diversion programs, providing
specified notification to eligible diversion program
participants, and establishing procedures for the collection and
distribution of restitution to victims.
To the extent the misdemeanor diversion program successfully
divert defendants from future prosecution and incarceration in
jail and/or prison, there would be unknown but potentially major
ongoing savings to the trial courts, local jails, and state
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Page 3
prisons.
The proposed author amendments strike the current contents of
the bill and replace it with a new Chapter 2.85 Postplea
Misdemeanor Diversion. Specifically:
Requires each prosecuting attorney to establish a
misdemeanor diversion program within his or her
jurisdiction for first time misdemeanant defendants, as
specified, to offer at the discretion of the prosecuting
attorney, diversion in lieu of sentencing.
Authorizes the superior court of the county where the
underlying offense occurred to overrule a determination by
a prosecuting attorney and offer a defendant diversion in
lieu of sentencing if the defendant has entered a plea of
guilty or nolo contendere, and the court sets forth the
reasons on the record for the overruling.
Provides that a court's order granting misdemeanor
diversion under this section shall be appealable, as
specified.
Provides that if a defendant owes restitution, the
misdemeanor diversion program to which the defendant is
referred shall establish procedures for the collection and
distribution of restitution to the victim or victims, and
the defendant shall provide proof of payment to the court.
Adds a sunset date of January 1, 2019.
The committee amendments delete the reference to "educational
programs" as one of three options (completion of counseling,
community service, or an educational program) that constitute
one of the required elements of the misdemeanor diversion
program. Staff notes this amendment does not preclude the use of
educational programs as part of a diversion program. This action
is consistent with the amendment taken as the bill moved off the
Assembly Appropriations Suspense File.