BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 994|
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THIRD READING
Bill No: AB 994
Author: Lowenthal (D)
Amended: 9/3/13 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 7/2/13
AYES: Hancock, Block, De León, Liu, Steinberg
NOES: Anderson, Knight
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/30/13
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
ASSEMBLY FLOOR : 47-29, 5/30/13 - See last page for vote
SUBJECT : Post-plea misdemeanor diversion programs
SOURCE : Conference of California Bar Associations
DIGEST : This bill requires each prosecuting attorney, as
specified, to establish a post-plea misdemeanor diversion
program where qualified misdemeanor defendants who plead guilty
or nolo contendere may be offered diversion in lieu of
sentencing.
ANALYSIS :
Existing law:
1.Includes various diversion programs under which a person
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arrested for 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 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.
2.Defines misdemeanor diversion thus: "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."
3.Excludes specified driving under the influence offenses from
pretrial diversion eligibility.
4.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.
5.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 and provides that a diversion
participant is entitled to a hearing before his/her pretrial
diversion can be terminated for cause.
6.Provides that any record filed with the Department of Justice
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/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.
7.Specifies that diversion may be granted only if it appears to
the court that all of the following apply:
A. The defendant's record does not indicate that probation
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or parole has ever been revoked without thereafter being
completed;
B. 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
C. 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.
1.States that diversion shall not be granted where which any of
the following apply:
A. The penalty for the crime includes mandatory
incarceration;
B. The defendant is required to register as a sex offender;
C. The offense is an alternate felony-misdemeanor that the
magistrate has deemed to be a misdemeanor;
D. The crime involves the use of force or violence against
a person, with exceptions;
E. Probation is prohibited;
F. The offense involves operation of a motor vehicle and is
punished as a misdemeanor pursuant to the Vehicle Code.
(Pen. Code Sec. 1001.51 (b)-(c).);
G. The offense involves driving under the influence.
This bill:
1.Requires each prosecuting attorney, as specified, to establish
a post-plea misdemeanor diversion program where qualified
misdemeanor defendants who plead guilty or nolo contendere may
be offered diversion in lieu of sentencing.
2.States that defendants who successfully complete the diversion
program will have the charges against them dismissed and the
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arrest deemed (with certain exceptions) never to have
occurred.
3.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.
4.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.
5.Adds a sunset date of January 1, 2019.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
One-time and ongoing potentially significant state-reimbursable
costs (General Fund) for the development and maintenance of a
misdemeanor diversion program in each county. Previously, these
programs became operative subject to an ordinance adopted by the
county board of supervisors.
Unknown, potentially significant state-reimbursable costs to
district attorneys mandated 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 (Trial Court Trust 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 prison time.
SUPPORT : (Verified 9/2/13)
Conference of California Bar Associations (source)
ACLU of California
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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 : (Verified 9/2/13)
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
ARGUMENTS IN SUPPORT : According to the author, 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 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.
ARGUMENTS IN OPPOSITION : According to the California District
Attorneys Association, "Current law allows district attorneys to
operate 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/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 may
participate in pre-plea diversion. Pre-plea diversion, inasmuch
as it does not require the person to plead guilty, is fraught
with difficulty as it often results in aged prosecutions that
are difficult to undertake when the defendant fails to complete
diversion."
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ASSEMBLY FLOOR : 47-29, 5/30/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Garcia,
Gatto, Gomez, Gonzalez, Gordon, Hall, Roger Hernández,
Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell, Mullin,
Nazarian, Pan, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,
Salas, Skinner, Stone, Ting, Weber, Wieckowski, Yamada, John
A. Pérez
NOES: Achadjian, Allen, Bigelow, Bonilla, Chávez, Conway,
Cooley, Dahle, Donnelly, Beth Gaines, Gorell, Grove, Hagman,
Harkey, Jones, Linder, Logue,
Maienschein, Mansoor, Melendez, Morrell, Muratsuchi, Nestande,
Olsen, Patterson, Perea, Wagner, Waldron, Wilk
NO VOTE RECORDED: Gray, Holden, Williams, Vacancy
JG:ej 9/3/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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