BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
2
1
2
AB 2124 (Lowenthal) 4
As Amended May 23, 2014
Hearing date: June 24, 2014
Penal Code
MK:sl
MISDEMEANOR OFFENSES:
DEFERRAL OF SENTENCING
HISTORY
Source: Author
Prior Legislation: AB 994 (Lowenthal) Vetoed, 2013
SB 513 (Hancock) Chapter 798, Stats. 2013
Support: American Probation and Parole Association; California
Attorneys for Criminal Justice; Californians for
Safety and Justice; Conference of California Bar
Associations; Judicial Council of California; Pacific
Educational Services, Inc.; Taxpayers for Improving
Public Safety; California Public Defenders Association
(if amended)
Opposition:Los Angeles District Attorney's Office; California
District Attorneys Association; California Partnership
to End Domestic Violence; Citizens for Law and Order;
Crime Victims Action Alliance
Assembly Floor Vote: Ayes 48 - Noes 25
KEY ISSUES
SHOULD A JUDGE BE PERMITTED TO ORDER MISDEMEANOR DIVERSION OVER THE
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OBJECTION OF THE PROSECUTING ATTORNEY IN A COUNTY WHERE THERE IS AN
ESTABLISHED MISDEMEANOR DIVERSION PROGRAM?
SHOULD A JUDGE BE PERMITTED TO ORDER MISDEMEANOR DIVERSION OVER THE
OBJECTION OF A PROSECUTING ATTORNEY FOR UP TO 12 MONTHS IN A COUNTY
WHERE THERE IS NOT AN ESTABLISHED MISDEMEANOR DIVERSION PROGRAM?
PURPOSE
The purpose of this bill is to allow a court to order a
defendant to misdemeanor diversion over the objection of the
prosecuting attorney.
Existing law includes various diversion programs under which a
person 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. Some examples of diversion
follow:
Pre-plea diversion for drug possession. (Penal 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. (Penal 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." (Penal
Code § 1001.1.)
Existing law excludes specified driving under the influence
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offenses from pretrial diversion eligibility. (Penal Code §
1001.2 (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. (Penal Code § 1001.2 (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. (Penal Code §
1001.3.)
Existing law provides that a diversion participant is entitled
to a hearing before his or her pretrial diversion can be
terminated for cause. (Penal Code § 1001.4.)
Existing law states if the participant has performed
satisfactorily during the period of diversion, the criminal
charges shall be dismissed. (Penal 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. (Penal Code § 1001.9 (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. (Penal Code § 1001.9 (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. (Penal Code §
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1001.50, (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,
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. (Penal Code § 1001.51
(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 (b) and (c).); and,
The offense involves driving under the influence.
This bill provides that a judge in the superior court of a
county that has established a misdemeanor diversion program may
at his or her discretion and over the objection of a prosecuting
attorney, offer misdemeanor diversion to a defendant according
to the misdemeanor diversion program.
This bill provides that a judge in the superior court in the
county that has not established a misdemeanor diversion program,
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may at his or her discretion, defer sentencing a defendant who
has submitted a plea of guilty or nolo contender for a period
not to exceed 12 months and the judge may order the defendant to
comply with terms, conditions, or programs the judge deems
appropriate based on the defendant's specific situation.
This bill provides that a defendant may make a motion for
imposition of diversion in counties with or without an
established misdemeanor diversion program.
This bill provides that if the defendant during the period of
deferral in a county without a misdemeanor diversion program,
complies with all terms, conditions, and programs required by
the court, then, the judge shall, at the end of the period,
strike the defendant's plea and dismiss the action against the
defendant.
This bill provides that upon completion of the terms, conditions
or programs ordered by the court, the arrest upon which
sentencing was deferred shall be deemed to have never occurred
and the defendant may indicate in response to any question
concerning his or her prior record that he or she was not
arrested or granted deferred entry of judgment for that at
offense except in specified circumstances.
This bill provides that if during the period of deferral, in a
county without a misdemeanor diversion program, the defendant
reoffends or fails to comply with the terms, conditions or
programs required by the court, then the court, the probation
officer or the prosecuting attorney shall make a motion for
entry of judgment, and the court shall sentence the defendant as
if the deferral had not occurred.
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.
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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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
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enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
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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
1. Need for the Bill
According to the author:
More than a dozen counties in California have
voluntarily adopted 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.
Last year Assemblymember Lowenthal authored AB 994,
which passed the Legislature but was vetoed by Governor
Brown. In its final form, the bill required all
counties to establish misdemeanor diversion programs.
AB 2124 has the same goal as its predecessor - to
expand opportunities for diversion or deferral of
misdemeanors. However this year's legislation places
no mandate on counties.
A prosecutor has the sole discretion to charge a
defendant with a crime, and existing misdemeanor
diversion programs are largely authorized and
administered at the discretion of a prosecuting
attorney. In counties where misdemeanor diversion
programs have been established by a prosecutor, AB 2124
provides judges with the ability to place defendants
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into those programs.
However, the court arguably has equal discretion to
issue a sentence once a plea has been entered or a
verdict rendered. In line with this precedent, in
counties where no diversion programs exist AB 2124
provides courts with explicit authority to defer
sentencing of a defendant who has pled guilty or "no
contest" to a misdemeanor. Upon deferral, a defendant
must comply with any terms, conditions or programs
required by the court. Defendants who successfully
fulfill all court mandated obligations would have their
plea and the action against them stricken from the
record. Defendants who fail to comply would be
sentenced as if deferral had not occurred.
AB 2124 has the potential to spare appropriately
selected offenders the stigma of a criminal record.
Diversion programs and alternative sentencing as
provided for in AB 2124 can save state and local
governments substantial sums of money and help free up
jurors from having to serve on comparatively
inconsequential trials.
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.
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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<1>
continued ? the general 'local option' structure of
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<2> 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.)
----------------------
<1> Penal Code §§1001-1001.9.
<2> Penal Code §§ 1001.50-1001.55
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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,
described the modern development of the issue:
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.)
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?[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
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
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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.)
4. Court Ordered Diversion
This bill would allow a court to order a defendant to diversion
whether or not the county has an established misdemeanor
diversion program. If there is a misdemeanor diversion program
in that county then the person must follow that program. If
there is no misdemeanor diversion program in the county the
court can defer sentencing for up to 12 months and order the
defendant to comply with terms, conditions or programs the court
deems necessary.
5. Support
American Probation and Parole Association support this bill
noting:
A Criminal record could prevent a defendant from
gaining employment or professional licensing and
thereby increasing the risk of additional criminal
activity. Diversion programs are also useful as part
of treatment plans for substance abuse or mental
illness. By addressing the issues that led to the
charge, clients can reduce their chance of involvement
in future offenses. In addition, community service has
the effect of building self-esteem and a sense of
serving the community which further decreases the risk
of recidivating.
Diversion programs reduce the trial docket caseload for
courts, allowing resources to be allocated to more
serious cases. Diversion programs also benefit the
court system by allowing first-tie offenders to gain a
positive perception of the judicial process through the
system giving them the opportunity to avoid prosecution
and change their behavior. A negative situation
becomes a life-changing opportunity.
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6. Opposition
The Los Angeles District Attorney's Office opposes this bill
stating:
Granting courts the unilateral power to divert
defendants who do not qualify for a diversion under the
prosecution's criteria would be a significant change in
the law. It would greatly expand the court's dismissal
powers which have traditionally been carefully
circumscribed.
Under current law, diversion programs are authorized
not mandated. Our office currently operates several
different types of diversion programs such as the
Women's Reentry Court, veteran's court, multiple drug
diversion programs and the Abolish Chronic Truancy
program. Our office is already in the process of
developing new misdemeanor diversion programs. We
believe that it is in the best interests of the
residents of Los Angeles County that these programs be
allowed to develop locally under the auspices of the
District Attorney before involving the Superior Court
in the equation.
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