BILL ANALYSIS Ó
AB 994
Page 1
GOVERNOR'S VETO
AB 994 (Lowenthal)
As Amended September 6, 2013
2/3 vote
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|ASSEMBLY: |47-29|(May 30, 2013) |SENATE: |25-11|(September 11, |
| | | | | |2013) |
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|ASSEMBLY: |46-30|(September 11, | | | |
| | |2013) | | | |
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Original Committee Reference: PUB. S.
SUMMARY : Requires each prosecuting attorney to establish a
postplea misdemeanor diversion program within his or her
jurisdiction.
The Senate amendments :
1)Narrow the provisions of this bill to postplea misdemeanor
diversion for first time offenders.
2)Define "postplea misdemeanor diversion."
3)Allow the superior court of the county to also offer the
defendant diversion even if the prosecuting attorney
determines that the defendant is negligible.
4)Provide that certain defendants are not eligible for postplea
diversion based on specified charges, prior convictions,
previous diversion, or as otherwise specified.
5)Specify the notification requirements that the prosecuting
attorney must follow when he or she determines a defendant is
eligible for postplea misdemeanor diversion.
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6)Require that if postplea diversion is offered, it must be
offered at a defendant's first appearance or within 20
calendar days of his or her first appearance, whichever occurs
later, unless a jury has been empaneled.
7)Provide additional conditions the defendant must comply with,
such as making full restitution and enrolling in a counseling
program approved by the prosecuting attorney, in order to be
deemed to have successfully completed his or her postplea
misdemeanor diversion program.
8)Require the postplea misdemeanor diversion program to which
the defendant is referred to establish procedures for the
collection and distribution of restitution to the victim or
victims, and provide proof of payment to the court.
9)Exempt a postplea diversion program that is already in
existence from compliance with the provisions of this bill.
10)Require the judge or magistrate, upon his or her motion or
upon the petition of the prosecuting attorney, and in the
furtherance of justice, to order an action to be dismissed if
the defendant has fulfilled the conditions of his or her
postplea misdemeanor diversion.
11)Establish a sunset date of January 1, 2019.
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
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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
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.
AS PASSED BY THE ASSEMBLY , this bill:
1)Stated 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.
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2)Provided that the pretrial diversion program established by
this bill shall apply to misdemeanor offenses, except as
specified.
3)Exempted 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
prosecuted as a misdemeanor, rather than a felony.
4)Provided 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)Specified 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)Stated 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)Specified 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
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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)Limited the period during which diversion is granted to be no
longer than 365 days.
9)Required 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.
10)Prohibited any requirement that the defendant make an
admission of guilt as a prerequisite for placement in a
pretrial diversion program.
11)Provided 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)Stated, 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)Required all terms and conditions of the program to be met
before the diversion program may be deemed successfully
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completed and the defendant's charge or charges dismissed.
14)Provided 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)Specified, 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)Required, 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)Stated 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
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)Required 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.
FISCAL EFFECT : According to the Senate Appropriations
Committee:
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1)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.
2)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.
3)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
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.
"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
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offenses."
GOVERNOR'S VETO MESSAGE :
"This bill requires every prosecuting agency to establish a
post-plea misdemeanor diversion program.
"Counties can establish diversion programs under current law,
and many already have excellent diversion programs that suit
their local circumstances. I believe prosecutors and counties
are best situated to decide whether, or what kind of, a
diversion program would be appropriate."
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0002937