BILL NUMBER: AB 994 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 25, 2013
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, 1001.35, 1001.4, 1001.6, and 1001.50 of, and
to add Section 1001.56 to, 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 misdemeanor diversion program,
to be administered by the district attorney of that county, and
would authorize either the district attorney or the superior court to
offer diversion to a defendant , as specified . The
program would specify the administrative procedures and who would be
eligible for the pretrial misdemeanor
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
misdemeanor diversion program, administered by
the district attorney of the county, by which a defendant may be
offered, at the discretion of the district attorney or the
superior court of the county, attorney,
diversion in lieu of sentencing as provided in this chapter. The
superior court of the county may also offer the defendant
postplea diversion, pursuant to Section 1001.35, in lieu of
sentencing as provided in this chapter.
(b) As used in this chapter, "pretrial the
following definitions shall apply:
(1) "Misdemeanor 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.
(2) "Prefile diversion" is diversion that is offered prior to
filing of the accusatory pleading.
(3) "Preplea diversion" is diversion that is offered after the
accusatory pleading is filed but prior to the entry of a plea.
(4) "Postplea diversion" is diversion that is offered after the
defendant has entered a plea of guilty.
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 misdemeanor
diversion program established by this chapter shall
apply may be offered to a defendant whenever
a district attorney is prepared to file an a
ccusatory pleading concerning the commission of a misdemeanor or
when 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.
(5) The victim is a person identified in Section 6211 of the
Family Code or the victim is a minor.
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 The
district attorney shall may 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, and if the
defendant has entered a guilty plea, the court may
independently determine whether the defendant is eligible for
the program. postplea diversion, pursuant to
Section 1001.35. If the district attorney or the court
determines that the defendant is eligible for diversion under
the program, the district attorney shall advise the
defendant defendant, and his or her
the defendant's attorney for preplea
diversion and postplea diversion, of that
the determination. This notification shall include all of
the following:
(1) A full description of the procedures for diversion.
(2) A In the case of preplea diversion, a
clear statement that that, in
lieu of trial, the court may grant diversion
provided that may be granted if the
defendant waives time for arraignment and plea.
(3) A clear statement that upon failure to
perform a term or condition under of
the program, or to comply with a court order, will result in
the district attorney or the court shall reinstate
proceedings reinstating criminal proceedings against
the defendant as if diversion had not occurred .
(b) The period during which diversion is granted shall be no
longer than 365 days.
(c)
(b) Every defendant who chooses to participate in the
program shall be required to complete each of the following:
(1) Enroll in and complete counseling or community
service, or both at least one of the following ,
as accepted by the district attorney.
attorney or the court where the court determines the defendant is
eligible pursuant to subdivision (a) of Section 1001.3:
(A) Counseling.
(B) Community service.
(C) An educational program.
(2) Make full restitution, if applicable.
(3) Comply with any court-ordered protective orders or stay-away
orders.
(d) At no time shall a
(c) A defendant who is
participating in prefile or preplea diversion shall not be
required to make an admission of guilt as a prerequisite for
placement in a pretrial diversion program under this chapter
diversion .
(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 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 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.
(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 1001.35 is
added to the Penal Code , to read:
1001.35. (a) If the court determines that the defendant is
eligible for the misdemeanor diversion program pursuant to this
chapter, the court may only offer postplea diversion.
(b) The court shall not offer postplea diversion if the defendant
has previously diverted under the provisions of this chapter or
Chapter 2.9 (commencing with Section 1001.50) of Title 6 of Part 2.
SEC. 8. SEC. 9. Section 1001.4 of
the Penal Code is repealed.
SEC. 9. SEC. 10. Section 1001.4 is
added to the Penal Code, to read:
1001.4. In a case in which the defendant owes restitution, the
district attorney shall establish procedures for the collection and
distribution of that restitution to the victim or victims.
SEC. 10. SEC. 11. Section 1001.6 of
the Penal Code is repealed.
SEC. 11. SEC. 12. Section 1001.6 is
added to the Penal Code, to read:
1001.6. (a) Any A 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. SEC. 13. Section 1001.7 of
the Penal Code is repealed.
SEC. 13. SEC. 14. Section 1001.8 of
the Penal Code is repealed.
SEC. 14. SEC. 15. Section 1001.9 of
the Penal Code is repealed.
SEC. 15. SEC. 16. Section 1001.50 of
the Penal Code is repealed.
SEC. 16. SEC. 17. Section 1001.50 is
added to the Penal Code, to read:
1001.50. (a) Each county shall establish a pretrial
misdemeanor diversion program, administered by
the district attorney of the county, by which the defendant may be
offered, at the discretion of the district attorney or the
superior court of the county, attorney,
diversion in lieu of sentencing as provided in this chapter. The
superior court of the county may also offer the defendant postplea
diversion, pursuant to Section 1001.56, in lieu of sentencing as
provided in this chapter.
(b) As used in this chapter, "pretrial diversion"
the following procedures shall
apply:
(1) "Misdemeanor 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.
(2) "Prefile diversion" is diversion that is offered prior to
filing of the complaint.
(3) "Preplea diversion" is diversion that is offered after the
complaint is filed, but prior to the entry of a plea.
(4) "Postplea diversion" is diversion that is offered after the
defendant has entered a plea of guilty.
SEC. 18. Section 1001.56 is added to the
Penal Code , to read:
1001.56. (a) If the court determines that the defendant is
eligible for the misdemeanor diversion program pursuant to this
chapter, the court may only offer postplea diversion.
(b) The court shall not offer postplea diversion if the defendant
has previously diverted under the provisions of this chapter or
Chapter 2.7 (commencing with Section 1001) of Title 6 of Part 2.
SEC. 17. SEC. 19. 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.