BILL NUMBER: AB 994	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 24, 2013
	AMENDED IN ASSEMBLY  APRIL 29, 2013
	AMENDED IN ASSEMBLY  APRIL 17, 2013

INTRODUCED BY   Assembly Member Lowenthal

                        FEBRUARY 22, 2013

   An act to amend Section 1001 of, to repeal Sections  1001.7,
 1001.8  ,  and 1001.9 of, and to repeal and add
Sections 1001.1, 1001.2, 1001.3, 1001.4, 1001.6,  1001.7,
 and 1001.50 of, the Penal Code, relating to diversion
programs.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 994, as amended, Lowenthal. Misdemeanor diversion programs.
   Under existing law, prosecution of an offense filed as a
misdemeanor may be postponed, either temporarily or permanently, at
any point in the judicial process from the point at which the accused
is charged until adjudication, for the person charged to participate
in a diversion program for the treatment of problem drinking or
alcoholism. Existing law requires the district attorney of each
county annually to review any diversion program. Existing law
prohibits a program from continuing without the approval of the
district attorney and prohibits a person from participating in a
diversion program without the authorization of the district attorney.

   This bill would require each county to establish and maintain a
pretrial diversion program, to be administered by the 
superior court   district attorney  of that county,
and would  remove the requirement for approval, both of the
program and the participation by an individual, by  
authorize either  the district attorney  or the superior
court to offer diversion to a defendant  . The program would
specify the administrative procedures and who would be eligible for
the pretrial diversion program. By requiring diversion programs in
additional counties, this bill would impose a state-mandated local
program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1001 of the Penal Code is amended to read:
   1001.  It is the intent of the Legislature that neither this
chapter, Chapter 2.5 (commencing with Section 1000) of this title,
nor any other provision of law be construed to preempt other current
or future pretrial or precomplaint diversion programs. It is also the
intent of the Legislature that current or future posttrial diversion
programs not be preempted, except as provided in Section 13201 or
13352.5 of the Vehicle Code.
  SEC. 2.  Section 1001.1 of the Penal Code is repealed.
  SEC. 3.  Section 1001.1 is added to the Penal Code, to read:
   1001.1.  (a) Each county shall establish a pretrial diversion
program, administered by the superior court  
district attorney  of the county, by which a defendant may be
offered, at the discretion of the  court  
district attorney or the superior court of the county  ,
diversion in lieu of sentencing as provided in this chapter.
   (b) As used in this chapter, "pretrial diversion" means 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.
  SEC. 4.  Section 1001.2 of the Penal Code is repealed.
  SEC. 5.  Section 1001.2 is added to the Penal Code, to read:
   1001.2.  (a) The pretrial diversion program established by this
chapter shall apply whenever a case is before a court upon an
accusatory pleading concerning the commission of a misdemeanor,
except a misdemeanor specified in subdivision (b).
   (b) This program shall not apply to a diversion program for the
treatment of problem drinking or alcoholism utilized for persons
convicted of one or more offenses under Section 23152 or 23153 or
former Section 23105 of the Vehicle Code, or to pretrial diversion
programs established pursuant to Chapter 2.5 (commencing with Section
1000).
   (c) Diversion shall not be an option under this chapter whenever
the accusatory pleading charges the commission of a misdemeanor for
which any of the following apply:
   (1) Incarceration would be mandatory upon conviction of the
defendant.
   (2) Registration would be required upon conviction pursuant to
Section 290.
   (3) The granting of probation is prohibited.
   (4) The magistrate determines that the offense shall be prosecuted
as a misdemeanor pursuant to paragraph (5) of subdivision (b) of
Section 17.
  SEC. 6.  Section 1001.3 of the Penal Code is repealed.
  SEC. 7.  Section 1001.3 is added to the Penal Code, to read:
   1001.3.  (a) At the time of filing a criminal complaint, or before
the defendant's arraignment, the  prosecuting  
district  attorney shall determine whether the defendant is
eligible for the misdemeanor diversion program.  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.  If the
 prosecuting   district  attorney  or
the court  determines that the defendant is eligible for the
program,  he or she  the district attorney 
shall advise the defendant and his or her attorney of that
determination. This notification shall include all of the following:
   (1) A full description of the procedures for diversion.
   (2) A clear statement that in lieu of trial, the court may grant
diversion provided that the defendant waives time for arraignment and
plea.
   (3) A clear statement that upon failure to perform a term or
condition under the program, or to comply with a court order, the
 prosecuting   district  attorney or the
court shall reinstate proceedings.
   (b) The period during which diversion is granted shall be no
longer than 365 days.
   (c) Every defendant who chooses to participate in the program
shall be required to complete each of the following:
   (1) Enroll in and complete  an educational program
  counseling or community service, or both,  as
accepted by the  court   district  
attorney  .
   (2) Make full restitution  , if applicable  .
   (3) Comply with any court-ordered protective orders or stay-away
orders.
   (d) At no time shall a defendant be required to make an admission
of guilt as a prerequisite for placement in a pretrial diversion
program under this chapter.
   (e) At the end of the pretrial diversion program, the defendant
shall be ordered back to court for pretrial or, if in compliance,
dismissal.
   (f) If, before the time of the dismissal hearing, the 
prosecuting   district  attorney files charges for
the commission of a new criminal offense during the diversion period,
or if the defendant has failed to complete the assigned 
educational program   counseling or community service
 , has willfully failed to make full restitution  , has
failed   or  to pay all fees, or has failed to
complete or comply with any other term or condition of the diversion
program, the  prosecuting   district 
attorney or the court may reinstate proceedings and set the matter
for pretrial.
   (g) The diversion program shall not be deemed to have been
successfully completed, nor can the defendant's charge or charges be
dismissed, until all terms and conditions of the program have been
met.
   (h) 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.
   (i) When a defendant's case is diverted, a bail bond or
undertaking, or a deposit held in lieu thereof, shall be ordered
exonerated by the court.
  SEC. 8.  Section 1001.4 of the Penal Code is repealed.
  SEC. 9.  Section 1001.4 is added to the Penal Code, to read:
   1001.4.   (a)     A
  In a    case in which the defendant
 may owe   owes  restitution  shall
be handled as follows:   ,   the district
  attorney shall establish procedures for the collection and
distribution of that restitution to the victim or victims. 

   (1) If, at the time of the defendant's admission into the program,
the defendant, the prosecuting attorney, and the victim agree as to
the amount of restitution owed, the court shall order the defendant
to pay that agreed upon amount of restitution.  
   (2) If, at the time of the defendant's admission into the program,
there is insufficient information, or the parties disagree, about
the nature or amount of restitution owed, the prosecuting attorney
will determine the amount of restitution owed to a victim or other
injured or damaged party. If the defendant disagrees with the amount
of restitution, he or she shall have a right to a hearing at which
the court shall determine the amount of restitution owed. The
defendant may waive the right to a restitution hearing and stipulate
to the amount of restitution determined by the prosecuting attorney.
 
   (b) At the time that restitution is ordered, the defendant shall
be ordered to complete, and shall complete, a "Financial Disclosure
Statement" as described in paragraph (5) of subdivision (f) of
Section 1202.4.  
   (c) At the time that diversion is granted, the defendant shall be
ordered to pay restitution in full prior to the scheduled pretrial
date. 
  SEC. 10.  Section 1001.6 of the Penal Code is repealed. 
  SEC. 11.    Section 1001.6 is added to the Penal
Code, to read:
   1001.6.  (a) Before the defendant may be deemed to have
successfully completed the diversion program, he or she shall pay in
full the following costs and fees:
   (1) The costs of the required educational program, to be paid
directly to the provider of the educational program.
   (2) The prosecuting attorney's administrative fee in an amount
authorized by the board of supervisors.
   (3) Any fees required by the court pursuant to Section 1001.16.
   (b) The prosecuting attorney's administrative fee shall not be
waived or discounted by the court, unless the court first determines
that the person is unable to pay all or part of that fee.
   (c) The costs and fees listed in this section shall be paid in
full prior to completion of the diversion program.  

  SEC. 12.   Section 1001.7 of the Penal Code is
repealed. 
   SEC. 13.   SEC. 11.  Section 
1001.7   1001.6  is added to the Penal Code, to
read:
    1001.7.   1001.6.   (a) Any record
filed with the Department of Justice shall indicate the disposition
in those cases diverted pursuant to this chapter. 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 in subdivision (b). 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.
   (b) The defendant shall be advised that, regardless of his or her
successful completion of the diversion program, the arrest upon which
the case was diverted may be disclosed by the Department of Justice
in response to any peace officer application request and that,
notwithstanding subdivision (a), this section does not relieve him or
her of the obligation 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 in Section 830.
   SEC. 12.    Section 1001.7 of the   Penal
Code   is repealed.  
   1001.7.  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. 
   SEC. 14.   SEC. 13.   Section 1001.8 of
the Penal Code is repealed.
   SEC. 15.   SEC. 14.   Section 1001.9 of
the Penal Code is repealed.
   SEC. 16.  SEC. 15.   Section 1001.50 of
the Penal Code is repealed.
   SEC. 17.   SEC. 16.   Section 1001.50 is
added to the Penal Code, to read:
   1001.50.  (a) Each county shall establish a pretrial diversion
program, administered by the  superior court  
district attorney  of the county, by which the defendant may be
offered, at the discretion of the  court  
district attorney or the superior court of the county  ,
diversion in lieu of sentencing as provided in this chapter.
   (b) As used in this chapter, "pretrial diversion" means 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.
   SEC. 18.   SEC. 17.   If the Commission
on State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.