BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 1022 (Bogh) 2
As Amended June 7, 2006
Hearing date: June 20, 2006
Penal Code
SM:mc
DIVERSION PROGRAM FEES
HISTORY
Source: Riverside County District Attorney's Office
Prior Legislation: SB 1108 (Presley) - Chapter 1059, Statutes of
1985
Support: California Peace Officers' Association; California
Police Chiefs' Association
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: No longer relevant, this is a new bill as
of June 7, 2006 .
KEY ISSUE
SHOULD PERSONS PARTICIPATING IN PRETRIAL DIVERSION FOR WRITING BAD
CHECKS BE REQUIRED TO PAY THE COST OF CLASSES REQUIRED AS PART OF
THE DIVERSION PROGRAM?
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PURPOSE
The purpose of this bill is to require persons who participate
in a pretrial diversion program established by a district
attorney's office to pay the cost of any class or classes
required to successfully complete the program.
Existing law prohibits writing bad checks as follows:
Any person who for himself or as the agent or
representative of another or as an officer of a
corporation, willfully, with intent to defraud, makes or
draws or utters or delivers any check, or draft or order
upon any bank or depositary, or person, or firm, or
corporation, for the payment of money, knowing at the time
of such making, drawing, uttering, or delivering that the
maker or drawer or the corporation has not sufficient funds
in, or credit with said bank or depositary, or person, or
firm, or corporation, for the payment of such check, draft,
or order and all other checks, drafts, or orders upon such
funds then outstanding, in full upon its presentation,
although no express representation is made with reference
thereto, is punishable by imprisonment in the county jail
for not more than one year, or in the state prison for 16
month, 2 or 3 years. (Penal Code section 476a(a).)
However, if the total amount of all such checks, drafts,
or orders that the defendant is charged with and convicted
of making, drawing, or uttering does not exceed $200, the
offense is punishable up to one year in the county jail,
unless the defendant has been previously convicted of a
similar offense, as specified. (Penal Code section
476a(b).)
A sheriff's department, police department, or other law
enforcement agency may collect a fee from the defendant for
investigation, collection, and processing of checks
referred to their agency for investigation of alleged
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violations of this section or Section 476.
The amount of the fee shall not exceed $25 for each bad
check in addition to the amount of any bank charges
incurred by the victim as a result of the alleged offense.
If the sheriff's department, police department, or other
law enforcement agency collects any fee for bank charges
incurred by the victim pursuant to this section, that fee
shall be paid to the victim for any bank fees the victim
may have been assessed. In no event shall reimbursement of
the bank charge to the victim pursuant to this section
exceed $10 per check. (Penal Code section 476a(g).)
Existing law provides that upon the adoption of a resolution by
the board of supervisors declaring that there are sufficient
funds available to fund the program, the district attorney may
create within his office a diversion program pursuant to this
chapter for persons who write bad checks. "Writing a bad check"
means making, drawing, uttering, or delivering any check or
draft upon any bank or depository for the payment of money where
there is probable cause to believe there has been a violation of
Section 476a. The program may be conducted by the district
attorney or by a private entity under contract with the district
attorney. (Penal Code section 1001.60.)
Existing law provides that the district attorney may refer a bad
check case to the diversion program. Except as provided in
Section 1001.64, (see below), this chapter does not limit the
power of the district attorney to prosecute bad check
complaints. (Penal Code section 1001.61.)
Existing law provides that on receipt of a bad check case, the
district attorney shall determine if the case is one which is
appropriate to be referred to the bad check diversion program.
In determining whether to refer a case to the bad check
diversion program, the district attorney shall consider, but is
not limited to, all of the following:
The amount of the bad check.
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If the person has a prior criminal record or has
previously been diverted.
The number of bad check grievances against the person
previously received by the district attorney.
Whether there are other bad check grievances currently
pending against the person.
The strength of the evidence, if any, of intent to
defraud the victim.
(Penal Code section 1001.62.)
Existing law provides that on referral of a bad check case to
the diversion program, a notice shall be forwarded by mail to
the person alleged to have written the bad check which contains
all of the following:
The date and amount of the bad check.
The name of the payee.
The date before which the person must contact the
person designated by the district attorney concerning the
bad check.
A statement of the penalty for issuance of a bad check.
(Penal Code section 1001.63.)
Existing law provides that the district attorney may enter into
a written agreement with the person to forego prosecution on the
bad check for a period to be determined by the district
attorney, not to exceed six months, pending all of the
following:
Completion of a class or classes conducted by the
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district attorney or private entity under contract with
the district attorney.
Full restitution being made to the victim of the bad
check.
Full payment of the collection fee, if any, specified
in Section 1001.65.
(Penal Code section 1001.64.)
Existing law provides that:
A district attorney may collect a fee if his or her
office collects and processes a bad check. The amount of
the fee shall not exceed thirty-five dollars ($35) for each
bad check in addition to the actual amount of any bank
charges incurred by the victim as a result of the offense.
(Penal Code section 1001.65(a).)
Notwithstanding subdivision (a) (immediately above),
when a criminal complaint is filed in a bad check case
after the maker of the check fails to comply with the terms
of the bad check diversion program, the court, after
conviction, may impose a bad check collection fee for the
collection and processing efforts by the district attorney
of not more than thirty-five dollars ($35) for each bad
check in addition to the actual amount of any bank charges
incurred by the victim as a result of the offense, not to
exceed one thousand dollars ($1,000) in the aggregate. The
court also may, as a condition of probation, require a
defendant to participate in and successfully complete a
check writing education class. If so required, the court
shall make inquiry into the financial condition of the
defendant and, upon a finding that the defendant is able in
whole or part to pay the expense of the education class,
the court may order him or her to pay for all or part of
that expense. (Penal Code section 1001.65(b).)
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If the district attorney elects to collect any fee for
bank charges incurred by the victim pursuant to this
section, that fee shall be paid to the victim for any bank
fees that the victim may have been assessed. In no event
shall reimbursement of a bank charge to the victim pursuant
to subdivision (a) or (b) exceed ten dollars ($10) per
check. (Penal Code section 1001.65(c).)
Existing law provides that at no time shall a defendant be
required to make an admission of guilt as a prerequisite for
placement in a precomplaint diversion program. (Penal Code
section 1001.66.)
Existing law provides that no statement, or information procured
therefrom, made by the defendant in connection with the
determination of his or her eligibility for diversion, and no
statement, or information procured therefrom, made by the
defendant, subsequent to the granting of diversion or while
participating in the program, and no information contained in
any report made with respect thereto, and no statement or other
information concerning the defendant's participation in the
program shall be admissible in any action or proceeding. (Penal
Code section 1001.67.)
This bill amends Penal Code section 1001.64 to add the
requirement that the person participating in the bad check
diversion program make full payment for the class or classes
required to complete the diversion agreement as well as a fee if
the District Attorney's office collected and processed any bad
check, not to exceed $35 per check.
COMMENTS
1. Need for This Bill
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According to the author:
AB 1022 clarifies existing law. Penal Code Section
1001.60 et seq. enables prosecutors to offer
precomplaint diversion to eligible bad check writers
believed to be in violation of Penal Code Section
476a. Those defendants who chose to participate in
California's bad check diversion programs are required
to make full restitution to the victim, to pay various
fees and to successfully complete a diversion class.
The intent of existing law is that all program costs
be borne by the participating defendants. Whether a
particular program is operated by a local prosecutor
entirely in-house or through a partnership with a
private company under contract to administer the
program and to teach the diversion classes (as
specifically authorized by existing law), established
public policy relieves the taxpayer from funding these
diversion programs.
Currently, these programs are being challenged because
the existing law does not explicitly spell out that
the program costs are to be borne by the participating
defendants and not the taxpayers. AB 1022 is
necessary to clarify what has been a fundamental
premise upon which these diversion programs have
operated for over two decades. This bill will make it
clear that the participating defendants, and not the
taxpayers, shall bear the costs of the diversion
program including any classes they attend.
2. Origin of This Bill
This bill has not previously been heard in any committee. The
subject of this bill was previously penalties for child abuse.
The bill had failed in this committee and was granted
reconsideration when the previous language of the bill was
removed and replaced with the bill's current language. This
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bill is also being proposed by a different author than when the
bill was heard in its previous incarnation.
3. Payment of Reasonable Costs
The existing statute proposed to be amended by this bill is part
of a statutory scheme found at Penal Code sections 1001.60, et
seq. The section which authorizes district attorneys' offices
to establish a pretrial diversion program for persons suspected
of having written bad checks states as follows with respect to
the costs of the program, "Upon the adoption of a resolution by
the board of supervisors declaring that there are sufficient
funds available to fund the program, the district attorney may
create within his office a diversion program pursuant to this
chapter for
persons who write bad checks." (Penal Code section 1001.60.)
Does the phrase, "to fund the program" include the cost of the
classes required of persons participating in the program? The
author argues that it does not.
Clearly, the language means, at a minimum, that the county would
only be authorized to establish such a diversion program after
the county board of supervisors found there were sufficient
funds available to pay for the costs of running the program, but
the statute is silent on the specific issue of whether the cost
of the required classes should be considered part of the costs
of running the program. It may be instructive to note that most
diversion programs do require that participants pay for such
classes with the important proviso that this requirement is
conditioned on the participant's ability to pay, as determined
by the court. (See e.g., Penal Code section 1000.3 (drug
diversion); 1000.17 (child abuse and neglect diversion); 1001.15
(felony diversion fees); 1001.16 (misdemeanor diversion fees);
1001.53 (misdemeanor diversion).) Under the current language of
this bill, the participant would be required to pay whatever
costs the District Attorney's office determines for the required
classes, regardless of the participant's ability to do so.
Failing to include language that conditions the payment
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requirement on the participant's ability to pay has profound
policy implications because it would establish that where a
person is suspected of having committed the offense of writing
bad checks, the opportunity to avoid having criminal charges
filed will depend, at least in part, on the financial resources
of the alleged offender. Additionally, under the bill, the
district attorney would have the authority to require the
participant to pay any amount it decides to charge for the
classes required to successfully complete the program. Without
any mechanism for participants to seek review of the amount
charged for these classes, this creates a situation that is ripe
for abuse.
A diversion program such as this one, which is made available
before any criminal complaint has been filed, presents a
different situation that a diversion program which diverts a
case out of the criminal justice system at some point after the
filing of the complaint. The difference here is that, where
there is no case before a court, there is no easy mechanism to
determine the reasonableness of the costs charged and the
participant's ability to pay those costs. Therefore, this
determination would have to be made at a hearing to be held in
the event the participant is deemed to have failed the program
due to the failure to pay the required costs. The author may
wish to consider whether the bill should be amended to provide
for a hearing to be held in such circumstances to allow the
court to determine what it is reasonable to expect a given
participant to pay.
SHOULD THE BILL BE AMENDED TO PROVIDE THAT PARTICIPANTS IN BAD
CHECK DIVERSION PROGRAMS, AS SPECIFIED, BE REQUIRED TO PAY,
ACCORDING TO THEIR ABILITY, THE REASONABLE COSTS ASSOCIATED WITH
THE REQUIRED CLASSES AND TO PROVIDE FOR A HEARING ON THESE
MATTERS IF THE PARTICIPANT IS FOUND TO HAVE FAILED THE PROGRAM
BASED ON FAILURE TO PAY THESE COSTS?
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