UNFINISHED BUSINESS  

Bill No: SB 394

Author: Skinner (D), et al.

Amended: 8/22/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/9/19

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Moorlach, Morrell

SENATE FLOOR: 30-2, 5/2/19

AYES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NOES: Morrell, Stone

NO VOTE RECORDED: Chang, Grove, Jones, Moorlach, Nielsen, Wilk

ASSEMBLY FLOOR: 46-14, 9/11/19 - See last page for vote

SUBJECT: Criminal procedure: diversion for primary caregivers of minor children

SOURCE: #cut50

DIGEST:

This bill authorizes the superior court, in agreement with the prosecuting entity and the public defender of the county, to establish a pretrial diversion program for primary caregivers of minor children, as specified.

Assembly Amendments

:

1. Require the presiding judge of the superior court to consult with the presiding juvenile court judge and criminal court judges in the creation and implementation of a pretrial diversion program for primary caregivers.
2. Prohibit a defendant from being placed into a pretrial diversion program for primary caregivers for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.
3. Clarify that a defendant who is placed in a pretrial diversion program may be referred to supportive services and classes in already existing diversion programs and county outpatient services, as provided.
4. Require the provider of the pretrial diversion services in which the defendant is placed to provide regular reports on the defendant’s progress.
5. Clarify the information that the court may consider in determining whether the defendant meets all of the eligibility requirements for a pretrial diversion program for primary caregivers.
6. Set the period of diversion to not less than six months and not more than 24 months.
7. State that if the defendant is also participating in juvenile court proceedings, the juvenile and criminal courts shall not duplicate efforts.

ANALYSIS:

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. (Pen. Code, § 1001.1.)
2. Excludes specified driving under the influence offenses from pretrial diversion eligibility. (Pen. Code, § 1001.2, subd. (a).)
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 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. (Pen. Code, § 1001.2, subd. (b).)
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. (Pen. Code, § 1001.3.)
5. Provides that a divertee is entitled to a hearing, as set forth by law, before their pretrial diversion can be terminated for cause. (Pen. Code, § 1001.4.)
6. States that 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. (Pen. Code, § 1001.7.)
7. Provides that any record filed with the Department of Justice (DOJ) shall indicate the disposition in those cases diverted pursuant to these provisions. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee 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 divertee's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (Pen. Code, § 1001.9, subd. (a).)
8. Authorizes a person who has successfully completed pretrial diversion to petition a court to issue an order to seal the arrest records for the diverted offense. (Pen. Code, § 851.87.)
9. Authorizes diversion programs for specified crimes (Pen. Code, §§ 1000 et seq. for drug abuse; Pen. Code, § 1001.12 et seq. for child abuse; Pen. Code, §§ 1001.70 et seq. for contributing to the delinquency of another, Pen. Code, §§ 1001.60 et seq. for writing bad checks) and for specific types of offenders (Pen. Code, §§ 1001.80 et seq. for veterans; Pen. Code, §§ 1001.35 et seq. for persons with mental disorders).

This bill:

1. Authorizes the presiding judge of the superior court, or a judge designated by the presiding judge, in consultation with the presiding juvenile court judge and criminal court judges, and together with the prosecuting entity and the public defender or the contracted criminal defense office that provides the services of a public defender, to agree in writing to establish and conduct a pretrial diversion program for primary caregivers wherein criminal proceedings are suspended without a plea of guilty for a period of not less than six months and not more than 24 months.
2. Provides that if the defendant is also participating in juvenile court proceedings, the juvenile and criminal courts shall not duplicate efforts.
3. Specifies that the program may include, but not be limited to, education, counseling, treatment and training programs.
4. States that the defendant may be referred to supportive services and classes in already existing diversion programs and county outpatient services, as provided.
5. Provides that the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant meets all of the following requirements:
   1. The defendant is a custodial parent or legal guardian of a minor child under 18 years of age, presently resides in the same household as that child, presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant’s absence in the child’s life would be detrimental to the child;
   2. The defendant has been advised of and waived the right to a speedy trial and a speedy preliminary hearing;
   3. The defendant has been informed and agrees to comply with the requirements of the program;
   4. The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined, or to the minor child in their custody, if allowed to remain in the community. The court may consider the positions of the prosecuting entity and defense counsel, and may consider the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant, and any other factors that the court deems appropriate;
   5. The defendant is not being placed into a diversion program for any serious felony or violent felony; and,
   6. The defendant is not being placed into a diversion program for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.
6. Requires the provider of the pretrial diversion services in which the defendant has been placed to provide regular progress reports.
7. States that if it appears that the defendant is performing unsatisfactorily in the assigned program, or if the defendant is, subsequent to entering the program, convicted of a felony or any offense that reflects a propensity for violence, the prosecuting attorney or the probation department may make a motion to reinstate criminal proceedings. The court may also reinstate criminal proceedings on its own motion.
8. Requires the court, after notice to the defendant, to hold a hearing to determine whether to reinstate criminal proceedings and if the court finds that the defendant is not performing satisfactorily in the assigned program or has been convicted of a felony or any offense that reflects a propensity for violence, the court may end the diversion program and order the resumption of criminal proceedings.
9. Provides that if the defendant has performed satisfactorily in diversion, at the end of diversion, the court shall dismiss the defendant’s criminal charges.
10. Provides that upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed to never have occurred and the court shall order access to the arrest record restricted.
11. Prohibits the use of a record pertaining to the arrest or any record generated as a result of the defendant’s application for or participation in diversion without the defendant’s consent in any way that could result in the denial of any employment, benefit, license or certificate.
12. Requires the defendant to be advised that an order to seal records of an arrest after successfully completing diversion has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed records.

Comments

According to the author of this bill:

Nearly half of all people behind bars in the United States were living with minor children prior to their incarceration. It is estimated that 10 million minors in this country experience parental incarceration at some point in their childhood and half of all children have a parent with a criminal record. The most recent data collected by California, which remains over a decade old, estimated that nearly 900,000 children in California had a parent in the adult criminal justice system.

This is particularly concerning given the generational effects of criminal convictions. Children in the US with system-impacted parents are affected on all five pillars of family well-being: children with parents who have a criminal conviction, even for a minor offense, live in families who experience significant barriers to 1) income; 2) savings and assets; 3) education; 4) housing; and 5) family strength and stability. Studies show that having an arrest record was the single best predictor of diminished job prospects (more so than long term unemployment, receipt of public assistance, or obtaining a GED instead of a high school diploma).

The distinct decrease in employment prospects as a result of a parent’s criminal conviction is particularly concerning given the impact of poverty on children in developing stages, which is associated with a slower rate of vocabulary development and a reduction of overall language skills; lower educational achievement; and higher rates of child absenteeism, bullying, and withdrawal.

Given that half of all children in this country have system-impacted parents, the ramifications of saddling a primary caregiver with incarceration or a criminal conviction, cannot be understated.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 9/11/19)

#cut50 (source)

American Academy of Pediatrics

California Attorneys for Criminal Justice

California Public Defenders Association

Drug Policy Alliance

Ella Baker Center for Human Rights

Initiate Justice

San Francisco Public Defender’s Office

OPPOSITION: (Verified 9/11/19)

California District Attorneys Association

ASSEMBLY FLOOR: 46-14, 9/11/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Carrillo, Chau, Chiu, Chu, Cooley, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, McCarty, Medina, Mullin, O'Donnell, Quirk, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Blanca Rubio, Santiago, Mark Stone, Ting, Voepel, Weber, Wicks, Wood, Rendon

NOES: Cervantes, Irwin, Lackey, Low, Mathis, Melendez, Muratsuchi, Obernolte, Patterson, Petrie-Norris, Ramos, Salas, Smith, Waldron

NO VOTE RECORDED: Bigelow, Brough, Calderon, Chen, Choi, Cooper, Cunningham, Daly, Diep, Flora, Fong, Frazier, Gallagher, Gray, Kiley, Maienschein, Mayes, Nazarian, Rodriguez

Prepared by: Stella Choe / PUB. S. /

9/11/19 20:14:31

**** END ****

SENATE THIRD READING

STR Bill Id:SB 394

Author:(Skinner)

As Amended Ver:August 22, 2019

Majority vote

SUMMARY:

Authorizes the superior court, in agreement with the district attorney and public defender, to establish a pretrial diversion program for primary caregivers of minor children.

Major Provisions

1. Allows the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender or the contract public defender's office, to agree in writing to establish and conduct a pretrial diversion program for primary caregivers lasting between 6 and 24 months.
2. Provides that the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant meets all specified requirements.
3. Excludes persons convicted of serious or violent felonies or persons alleged to have committed a crime against his or her child.
4. Provides that the court on its own motion, the prosecutor, or the probation department, may move to reinstate criminal proceedings if it appears that the defendant is either performing unsatisfactorily in the program, or if the defendant is convicted of a felony or any offense that reflects a propensity for violence subsequent to entering the program.
5. Entitles a defendant who has performed satisfactorily on diversion to dismissal of the criminal charges.
6. Provides that upon successful completion of diversion and dismissal of the charges, the arrest upon which the diversion was based shall be deemed to never have occurred and the court shall order access to the arrest record restricted, as specified.

COMMENTS:

According to the Author:

According to the author, "SB 394 protects dependent children from being separated from their caregiver by providing the primary caregivers with the support they need to remain in the home.

"SB 394 diverts eligible defendants out of the traditional system and into the pretrial diversion program where they required to participate in programming such as: housing, employment, parenting, counseling, financial literacy, drug and alcohol treatment, or mental health screening and treatment.

"Upon satisfactory completion of the diversion program, the charges will be dismissed, and the primary caregiver and dependent child will not be saddled with the debilitating collateral consequences of a criminal conviction."

Arguments in Support:

According to the National Association of Social Workers California Chapter, "The incarceration of a parent is an inherently traumatic event for a child of any age. A study published in the September 2018 issue of the journal Pediatrics found that the incarceration of a parent was associated with unhealthy behaviors in young adulthood, even after controlling for other variables. This finding builds on previous research which has established that parental incarceration 'is associated with learning delays and behavioral problems [… and] is detrimental to health in childhood and adulthood,' with significantly higher rates of asthma, HIV/AIDS, depression, anxiety, and posttraumatic stress disorder among those whose parents were incarcerated ("Health Care Use and Health Behaviors Among Young Adults With History of Parental Incarceration"). No child, of course, should live in an unsafe home; but all too often, parents are jailed for minor, nonviolent offenses, removed from their children when there is no threat to the child's well-being.

"SB 394 (Skinner) would reduce the trauma of parental incarceration by allowing parents who are their children's primary caregivers to complete a specially designed diversion program rather than face jail time for minor, nonviolent offenses—thus avoiding the punishment of children for their parents' deeds."

Arguments in Opposition:

According to the California District Attorneys Association, "This bill would create a new pretrial diversion scheme, singling out one class of individuals for disparate treatment under the law; allowing those who provide primary care for children, financially or otherwise, to avoid accountability for their crimes.

"The following cases offer legal support as to why disparate treatment should be avoided: Eisenstadt v. Baird (1972) 405 U.S. 438 [statute permitting married persons to obtain contraceptives to prevent pregnancy but prohibiting distribution of contraceptives to single persons for that purpose violates equal protection clause]; Williams v. State (Ala. Crim. App. 1986) 494 So.2d 819 [marital exemption to forcible sodomy statute was not rationally based and thus violated equal protection clause of Fourteenth Amendment].

"AB 394 would also jeopardize public safety by hiding the commission of criminal offenses to future employers who may come to rely on the integrity of the employee for financial and other sensitive matters….

"In Los Angeles County alone, there were 284,433 misdemeanors filed in FY 2014-15. SB 394 would allow many of these defendants (plus a sizeable cohort of 1170(h) felons) to make the case for diversion based on a claim that he or she is the primary caregiver, whether financially or through emotional support and care. In addition to the time this would take up front, because this is pre-plea diversion, the court would have to leave all of these cases open for up to two years while the defendant participates in the program….

"Finally, SB 394 seems to ignore the reality that many of these crimes have victims. The bill lacks even basic language to address how victim restitution would be impacted in the event of a case dismissal and/or during the pendency of a lengthy diversion process.

"Under current law, the court already has the discretion to consider the defendant's contribution to the family unit in determining what the appropriate sentence is for the offense committed. The probation department is in the best position to determine the appropriate services for a defendant that is placed on probation. And, the resources and infrastructure already exist for probation."

FISCAL COMMENTS:

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

Please see the policy committee analysis for a full discussion of this bill.

VOTES:

SENATE FLOOR: 30-2-6

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NO: Morrell, Stone

ABS, ABST OR NV: Chang, Grove, Jones, Moorlach, Nielsen, Wilk

ASM PUBLIC SAFETY: 6-0-2

YES: Jones-Sawyer, Bauer-Kahan, Kamlager-Dove, Quirk, Santiago, Wicks

ABS, ABST OR NV: Lackey, Mathis

UPDATED:

VERSION: August 22, 2019

CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001462

SENATE THIRD READING

STR Bill Id:SB 394

Author:(Skinner)

As Amended Ver:June 6, 2019

Majority vote

SUMMARY:

Authorizes the superior court, in agreement with the district attorney and public defender, to establish a pretrial diversion program for primary caregivers of minor children.

Major Provisions

1. Allows the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender or the contract public defender's office, to agree in writing to establish and conduct a pretrial diversion program for primary caregivers.
2. Provides that the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant meets all specified requirements.
3. Provides that the court on its own motion, the prosecutor, or the probation department, may move to reinstate criminal proceedings if it appears that the defendant is either performing unsatisfactorily in the program, or if the defendant is convicted of a felony or any offense that reflects a propensity for violence subsequent to entering the program.
4. Entitles a defendant who has performed satisfactorily on diversion to dismissal of the criminal charges.
5. Provides that upon successful completion of diversion and dismissal of the charges, the arrest upon which the diversion was based shall be deemed to never have occurred and the court shall order access to the arrest record restricted, as specified.

COMMENTS:

According to the Author:

According to the author, "SB 394 protects dependent children from being separated from their caregiver by providing the primary caregivers with the support they need to remain in the home.

"SB 394 diverts eligible defendants out of the traditional system and into the pretrial diversion program where they required to participate in programming such as: housing, employment, parenting, counseling, financial literacy, drug and alcohol treatment, or mental health screening and treatment.

"Upon satisfactory completion of the diversion program, the charges will be dismissed, and the primary caregiver and dependent child will not be saddled with the debilitating collateral consequences of a criminal conviction."

Arguments in Support:

According to the National Association of Social Workers California Chapter, "The incarceration of a parent is an inherently traumatic event for a child of any age. A study published in the September 2018 issue of the journal Pediatrics found that the incarceration of a parent was associated with unhealthy behaviors in young adulthood, even after controlling for other variables. This finding builds on previous research which has established that parental incarceration 'is associated with learning delays and behavioral problems [… and] is detrimental to health in childhood and adulthood,' with significantly higher rates of asthma, HIV/AIDS, depression, anxiety, and posttraumatic stress disorder among those whose parents were incarcerated ("Health Care Use and Health Behaviors Among Young Adults With History of Parental Incarceration"). No child, of course, should live in an unsafe home; but all too often, parents are jailed for minor, nonviolent offenses, removed from their children when there is no threat to the child's well-being.

"SB 394 (Skinner) would reduce the trauma of parental incarceration by allowing parents who are their children's primary caregivers to complete a specially designed diversion program rather than face jail time for minor, nonviolent offenses—thus avoiding the punishment of children for their parents' deeds."

Arguments in Opposition:

According to the California District Attorneys Association, "This bill would create a new pretrial diversion scheme, singling out one class of individuals for disparate treatment under the law; allowing those who provide primary care for children, financially or otherwise, to avoid accountability for their crimes.

"The following cases offer legal support as to why disparate treatment should be avoided: Eisenstadt v. Baird (1972) 405 U.S. 438 [statute permitting married persons to obtain contraceptives to prevent pregnancy but prohibiting distribution of contraceptives to single persons for that purpose violates equal protection clause]; Williams v. State (Ala. Crim. App. 1986) 494 So.2d 819 [marital exemption to forcible sodomy statute was not rationally based and thus violated equal protection clause of Fourteenth Amendment].

"AB 394 would also jeopardize public safety by hiding the commission of criminal offenses to future employers who may come to rely on the integrity of the employee for financial and other sensitive matters….

"In Los Angeles County alone, there were 284,433 misdemeanors filed in FY 2014-15. SB 394 would allow many of these defendants (plus a sizeable cohort of 1170(h) felons) to make the case for diversion based on a claim that he or she is the primary caregiver, whether financially or through emotional support and care. In addition to the time this would take up front, because this is pre-plea diversion, the court would have to leave all of these cases open for up to two years while the defendant participates in the program….

"Finally, SB 394 seems to ignore the reality that many of these crimes have victims. The bill lacks even basic language to address how victim restitution would be impacted in the event of a case dismissal and/or during the pendency of a lengthy diversion process.

"Under current law, the court already has the discretion to consider the defendant's contribution to the family unit in determining what the appropriate sentence is for the offense committed. The probation department is in the best position to determine the appropriate services for a defendant that is placed on probation. And, the resources and infrastructure already exist for probation."

FISCAL COMMENTS:

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

Please see the policy committee analysis for a full discussion of this bill.

VOTES:

SENATE FLOOR: 30-2-6

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NO: Morrell, Stone

ABS, ABST OR NV: Chang, Grove, Jones, Moorlach, Nielsen, Wilk

ASM PUBLIC SAFETY: 6-0-2

YES: Jones-Sawyer, Bauer-Kahan, Kamlager-Dove, Quirk, Santiago, Wicks

ABS, ABST OR NV: Lackey, Mathis

UPDATED:

VERSION: June 6, 2019

CONSULTANT: Sandy Uribe (Cousnel) / PUB. S. / (916) 319-3744 FN: 0001163

Date of Hearing: June 25, 2019

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 394

Author:(Skinner) – As Amended Ver:June 6, 2019

SUMMARY: Authorizes the superior court, in agreement with the district attorney and public defender, to establish a pretrial diversion program for primary caregivers of minor children. Specifically, this bill:

1. Allows the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender or the contract public defender’s office, to agree in writing to establish and conduct a pretrial diversion program for primary caregivers.
   
2. Specifies that the program may include, but is not limited to, parenting classes, family and individual counseling, and other classes, treatment and training programs.
   
3. Provides that the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant meets all of the following requirements:
   
   1. The defendant is a custodial parent or legal guardian of a child under the age of 18 years who presently resides in the same household as that child, and, either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that child;
      
   2. The defendant has been advised of, and waives, the right to a speedy preliminary hearing and trial, and to a trial by jury;
      
   3. The defendant agrees to comply with the requirements of the program;
      
   4. The court determines that defendant does not pose an unreasonable risk of danger to public safety or to the custodial child, if allowed to remain in the community; and,
      
   5. The defendant is not charged with a serious felony or violent felony, as specified.
      
4. States that in determining whether the defendant poses an unreasonable risk if allowed to remain in the community, the court may consider the opinions of both the prosecutor and defense counsel, as well as the defendant’s violence and criminal history, the current charged offense, the behavior towards the minors, and any other factors deemed appropriate.
   
5. Provides that the court on its own motion, the prosecutor, or the probation department, may move to reinstate criminal proceedings if it appears that the defendant is either performing unsatisfactorily in the program, or if the defendant is convicted of a felony or any offense that reflects a propensity for violence subsequent to entering the program.
   
6. Requires the court, after notice to the defendant, to hold a hearing to determine whether to reinstate criminal proceedings.
   
7. Requires the court to schedule the matter for further proceedings if it finds that the defendant is not performing satisfactorily in the program or has been convicted of a felony or any offense that reflects a propensity for violence.
   
8. Entitles a defendant who has performed satisfactorily on diversion to dismissal of the criminal charges.
   
9. Provides that upon successful completion of diversion and dismissal of the charges, the arrest upon which the diversion was based shall be deemed to never have occurred and the court shall order access to the arrest record restricted, as specified.
   
10. Prohibits the use of, without the defendant’s consent, an arrest record or any record generated as a result of the defendant’s diversion in any way that could result in the denial of any employment, benefit, license, or certificate.
    
11. Requires the defendant be informed that an order to seal arrest records after successful completion of diversion has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed records.

EXISTING LAW:

1. Defines pretrial diversion as “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.” (Pen. Code, § 1001.1.)
   
2. Authorizes diversion programs for specified crimes, such as drug use (Pen. Code, §§ 1000 et seq.), misdemeanors (Pen. Code, § 1001 et. seq.), child abuse (Pen. Code, § 1001.12 et seq.), contributing to the delinquency of a minor (Pen. Code, §§ 1001.70 et seq.), writing bad checks (Pen. Code, §§ 1001.60 et seq.), repeat theft crimes (Pen. Code, §§ 1001.81 et seq.), as well as for specific types of offenders including veterans (Pen. Code, §§ 1001.80 et seq.), persons with cognitive developmental disabilities (Pen. Code, § 1001.20 et seq.), and persons with mental disorders (Pen. Code, §§ 1001.36 et seq.).
   
3. Excludes specified driving under the influence offenses from pretrial diversion eligibility. (Pen. Code, § 1001.2, subd. (a).)
   
4. Provides that the district attorney of each county shall review annually any misdemeanor diversion program adopted by the county, 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. (Pen. Code, § 1001.2, subd. (b).)
   
5. States that the prosecutor is not authorized to determine whether a particular defendant shall be diverted. (Pen. Code, § 1001.2, subd. (b).)
   
6. 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. (Pen. Code, § 1001.3.)
   
7. Provides that a defendant in a diversion program is entitled to a hearing, as set forth by law, before pretrial diversion can be terminated for cause. (Pen. Code, § 1001.4.)
   
8. States that if the defendant has performed satisfactorily during the period of diversion, the criminal charges shall be dismissed at the end of the period of diversion. (Pen. Code, § 1001.7.)
   
9. Authorizes a person who has successfully completed pretrial diversion to petition a court to issue an order to seal the arrest records for the diverted offense. (Pen. Code, § 851.87.)
   
10. Provides that any record filed with the Department of Justice (DOJ) shall indicate the disposition in diverted cases. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The participant 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 participant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (Pen. Code, § 1001.9, subd. (a).)
    
11. Requires an advisement to the participant in a diversion program informing him or her that, regardless of the successful completion of diversion, the arrest record may be disclosed in response to a peace officer application request and the participant is obligated to disclose the arrest if applying for employment as a peace officer. (Pen. Code, § 1001.9, subd. (b).)
    
12. States that, notwithstanding an order to seal arrest records for a diverted offense, a criminal justice agency retains the ability to access and use those sealed records. (Pen. Code, § 1001.9, subd. (c).)
    

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “SB 394 protects dependent children from being separated from their caregiver by providing the primary caregivers with the support they need to remain in the home.
   
   “SB 394 diverts eligible defendants out of the traditional system and into the pretrial diversion program where they required to participate in programming such as: housing, employment, parenting, counseling, financial literacy, drug and alcohol treatment, or mental health screening and treatment.
   
   “Upon satisfactory completion of the diversion program, the charges will be dismissed, and the primary caregiver and dependent child will not be saddled with the debilitating collateral consequences of a criminal conviction.”
   
2. Diversion Programs: Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions. A defendant may not be required to admit guilt as a prerequisite for placement in a pretrial diversion program. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense. If diversion is not successfully completed, the criminal proceedings resume.
   
   Existing law established diversion programs for specified crimes, including: drug use (Pen. Code, §§ 1000 et seq.); misdemeanors generally (Pen. Code, § 1001 et. seq.); child abuse and neglect (Pen. Code, § 1001.12 et seq.); contributing to the delinquency of a minor (Pen. Code, §§ 1001.70 et seq.); writing bad checks (Pen. Code, §§ 1001.60 et seq.), and repeat theft crimes (Pen. Code, §§ 1001.81 et seq.). There are other diversion programs that are focused on specific types of offenders including: veterans (Pen. Code, §§ 1001.80 et seq.); persons with cognitive developmental disabilities (Pen. Code, § 1001.20 et seq.); and persons with mental disorders (Pen. Code, §§ 1001.36 et seq.).
   

This bill would authorize courts, in concurrence with the district attorney and the public defender of the county, to establish a pretrial diversion program for primary caregivers of minor children. This bill would also require that a defendant meet specific eligibility criteria including that the defendant is a custodial parent or legal guardian of a minor child, presently resides in the same household as that child, and either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that child. Further, in order to grant diversion, the court must be satisfied that the defendant would not pose an unreasonable risk of danger to public safety or to the custodial child, if allowed to remain in the community. A defendant charged with a serious or violent felony would be excluded from eligibility under the provisions of this bill.

1. Impact of Incarceration on Dependent Children: According to a 2017 article published by the National Institute of Justice (NIJ), children of incarcerated parents are “hidden victims” of the criminal justice system. These children often face a multitude of challenges including: psychological strain, antisocial behavior, suspension or expulsion from school, economic hardship, and criminal activity.(Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, NIJ Journal No. 278, March 2017, available at: <https://www.nij.gov/journals/278/Pages/impact-of-incarceration-on-dependent-children.aspx>.) The article acknowledges that because each child and case is unique, “It is difficult to predict how a child will fare when a parent is intermittently or continually incarcerated, and research findings on these children's risk factors are mixed.” (Ibid.)
   
   According to the NIJ, the most common consequence of parental incarceration appears to be antisocial behavior, “which describes any number of behaviors that go against social norms, including criminal acts and persistent dishonesty.” Other psychological problems include depression.
   

The NIJ article notes that research indicates that the imprisonment of a parent will lead to a cycle of intergenerational criminal behavior. Further, one study found that children who have incarcerated mothers “had much higher rates of incarceration — and even earlier and more frequent arrests — than children of incarcerated fathers.”

Another impact described in the NIJ article is economic well-being, as most children with incarcerated parents have restricted financial resources available for their support. Finally, the article notes that the research suggests that the incarceration of a parent may affect educational attainment.

As for the propensity of the problem, the article states that the estimates on the number of who have incarcerated parents vary; but that one report found that the number of children who have experienced parental incarceration may range from 1.7 million to 2.7 million. The data further shows that children from communities of color are more likely to have an incarcerated parent than white children.

1. Equal Protection Considerations: This bill would establish a separate diversion program for primary caregivers of dependent children which is not available to defendants who are not primary caregivers. A state law that provides favorable treatment to one class of persons based solely on their status, while denying other classes of persons the same treatment may raise equal protection implications.
   
   The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. Accordingly, the first prerequisite to a claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (People v. Brown (2012) 54 Cal.4th 314.)
   
   Under the provisions of this bill, the allegation would be that persons who commit the same crime might be treated differently based on whether or not the perpetrator is a parent who is the primary caregiver of a dependent child.

The courts have used a three-tier system in order to determine whether a statute violates the equal protection clause: strict scrutiny, intermediate scrutiny, and minimal scrutiny. Where legislation does not burden a suspect class or a constitutionally protected right, then the legislative act faces minimal scrutiny. Equal protection of the law is denied only where there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Under the minimal level of equal protection analysis, great deference is given to legislative determinations. (Id. at p. 887.) “A state may provide for differences as long as the result does not amount to invidious discrimination. Equal protection … require[s] that a distinction made have some relevance to the purpose for which the classification is made.” (People v. Cruz (2012) 207 Cal.App.4th 664, 675, citations omitted.)

The stated goal of this primary caregiver diversion program is to avoid the detrimental impacts that parental incarceration has on minor, dependent children. This would appear to be a legitimate state interest.

Further, it should be noted that although most diversion programs are offense specific, there are several diversion programs which make eligibility contingent on the nature of the offender. For example, the Legislature established a diversion program for defendants diagnosed with qualifying mental health disorders. (Pen. Code, § 1001.36, subd. (a).) There is also a diversion program for persons with cognitive developmental disabilities. (Pen. Code, § 1001.20 et. seq.) And there is diversion program available for members of the military and veterans. (Pen. Code § 1001.80.)

Moreover, several courts have found that equal protection principles do not require the Legislature to make diversion uniformly available. (See e.g. People v. Superior Court (Skoblov) (1987) 195 Cal.App.3d 1209, 1214-1218 [addressing an equal protection challenge to misdemeanor diversion because it was not offered in all counties]; People v. Edwards (1991) 235 Cal.App.3d 1700, [addressing an equal protection challenge based on ineligibility for drug diversion based on a specific offense].)

1. Argument in Support: According to the National Association of Social Workers California Chapter, “The incarceration of a parent is an inherently traumatic event for a child of any age. A study published in the September 2018 issue of the journal Pediatrics found that the incarceration of a parent was associated with unhealthy behaviors in young adulthood, even after controlling for other variables. This finding builds on previous research which has established that parental incarceration ‘is associated with learning delays and behavioral problems [… and] is detrimental to health in childhood and adulthood,’ with significantly higher rates of asthma, HIV/AIDS, depression, anxiety, and posttraumatic stress disorder among those whose parents were incarcerated (“Health Care Use and Health Behaviors Among Young Adults With History of Parental Incarceration”). No child, of course, should live in an unsafe home; but all too often, parents are jailed for minor, nonviolent offenses, removed from their children when there is no threat to the child’s well-being. |
   
   “SB 394 (Skinner) would reduce the trauma of parental incarceration by allowing parents who are their children’s primary caregivers to complete a specially designed diversion program rather than face jail time for minor, nonviolent offenses—thus avoiding the punishment of children for their parents’ deeds.”
   
2. Argument in Opposition: According to the California District Attorneys Association, “This bill would create a new pretrial diversion scheme, singling out one class of individuals for disparate treatment under the law; allowing those who provide primary care for children, financially or otherwise, to avoid accountability for their crimes.
   
   “The following cases offer legal support as to why disparate treatment should be avoided: Eisenstadt v. Baird (1972) 405 U.S. 438 [statute permitting married persons to obtain contraceptives to prevent pregnancy but prohibiting distribution of contraceptives to single persons for that purpose violates equal protection clause]; Williams v. State (Ala. Crim. App. 1986) 494 So.2d 819 [marital exemption to forcible sodomy statute was not rationally based and thus violated equal protection clause of Fourteenth Amendment].
   
   “AB 394 would also jeopardize public safety by hiding the commission of criminal offenses to future employers who may come to rely on the integrity of the employee for financial and other sensitive matters….
   
   “In Los Angeles County alone, there were 284,433 misdemeanors filed in FY 2014-15. SB 394 would allow many of these defendants (plus a sizeable cohort of 1170(h) felons) to make the case for diversion based on a claim that he or she is the primary caregiver, whether financially or through emotional support and care. In addition to the time this would take up front, because this is pre-plea diversion, the court would have to leave all of these cases open for up to two years while the defendant participates in the program….
   
   “Finally, SB 394 seems to ignore the reality that many of these crimes have victims. The bill lacks even basic language to address how victim restitution would be impacted in the event of a case dismissal and/or during the pendency of a lengthy diversion process.
   
   “Under current law, the court already has the discretion to consider the defendant’s contribution to the family unit in determining what the appropriate sentence is for the offense committed. The probation department is in the best position to determine the appropriate services for a defendant that is placed on probation. And, the resources and infrastructure already exist for probation.”
   
3. Prior Legislation:
   
   1. AB 1065 (Jones-Sawyer), Chapter 803, Statutes of 2018, in pertinent part, created a diversion program for repeat theft offenders, and sunsets the program on January 1, 2021.
      
   2. AB 1810 (Assembly Budget Committee), Chapter 34, Statutes of 2018, allows trial courts to divert mentally ill defendants into pre-existing treatment programs, where the proposed program is consistent with the needs of the defendant and the safety of the community.
      
   3. AB 596 (Choi), of the 2017-2018 Legislative Session, would have provided that a referral to diversion qualifies as a conviction for purposes of a victim seeking and securing restitution. AB 596 was referred to this Committee and the hearing was cancelled at the request of the author.
      
   4. AB 994 (Lowenthal), of the 2013-2014 Legislative Session, would have required each county to establish and maintain a pretrial diversion program, to be administered by the district attorney of that county, and authorizes either the district attorney or the superior court to offer diversion to a defendant. AB 994 was vetoed.
      
   5. SB 1227 (Hancock), Chapter 658, Statutes of 2013, created a diversion program for veterans who commit misdemeanors or county jail-eligible felonies and who are suffering from service-related trauma or substance abuse.

REGISTERED SUPPORT / OPPOSITION:

Support

American Academy of Pediatrics, California

Anti-Recidivism Coalition

California Attorneys for Criminal Justice

California Public Defenders Association

California State PTA

Disability Rights California

Drug Policy Alliance

Ella Baker Center for Human Rights

Friends Committee on Legislation of California

Legal Services for Prisoners with Children

National Association of Social Workers, California Chapter

Opposition

California District Attorneys Association

California State Sheriffs' Association

Los Angeles County District Attorney's Office

Riverside Sheriffs' Association

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

Date of Hearing: June 11, 2019

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 394

Author:(Skinner) – As Amended Ver:June 6, 2019

SUMMARY: Authorizes the superior court, in agreement with the district attorney and public defender, to establish a pretrial diversion program for primary caregivers of minor children. Specifically, this bill:

1. Allows the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender or the contract public defender’s office, to agree in writing to establish and conduct a pretrial diversion program for primary caregivers.
   
2. Specifies that the program may include, but is not limited to, parenting classes, family and individual counseling, and other classes, treatment and training programs.
   
3. Provides that the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant meets all of the following requirements:
   
   1. The defendant is a custodial parent or legal guardian of a child under the age of 18 years who presently resides in the same household as that child, and, either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that child;
      
   2. The defendant has been advised of, and waives, the right to a speedy preliminary hearing and trial, and to a trial by jury;
      
   3. The defendant agrees to comply with the requirements of the program;
      
   4. The court determines that defendant does not pose an unreasonable risk of danger to public safety or to the custodial child, if allowed to remain in the community; and,
      
   5. The defendant is not charged with a serious felony or violent felony, as specified.
      
4. States that in determining whether the defendant poses an unreasonable risk if allowed to remain in the community, the court may consider the opinions of both the prosecutor and defense counsel, as well as the defendant’s violence and criminal history, the current charged offense, the behavior towards the minors, and any other factors deemed appropriate.
   
5. Provides that the court on its own motion, the prosecutor, or the probation department, may move to reinstate criminal proceedings if it appears that the defendant is either performing unsatisfactorily in the program, or if the defendant is convicted of a felony or any offense that reflects a propensity for violence subsequent to entering the program.
   
6. Requires the court, after notice to the defendant, to hold a hearing to determine whether to reinstate criminal proceedings.
   
7. Requires the court to schedule the matter for further proceedings if it finds that the defendant is not performing satisfactorily in the program or has been convicted of a felony or any offense that reflects a propensity for violence.
   
8. Entitles a defendant who has performed satisfactorily on diversion to dismissal of the criminal charges.
   
9. Provides that upon successful completion of diversion and dismissal of the charges, the arrest upon which the diversion was based shall be deemed to never have occurred and the court shall order access to the arrest record restricted, as specified.
   
10. Prohibits the use of, without the defendant’s consent, an arrest record or any record generated as a result of the defendant’s diversion in any way that could result in the denial of any employment, benefit, license, or certificate.
    
11. Requires the defendant be informed that an order to seal arrest records after successful completion of diversion has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed records.

EXISTING LAW:

1. Defines pretrial diversion as “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.” (Pen. Code, § 1001.1.)
   
2. Authorizes diversion programs for specified crimes, such as drug use (Pen. Code, §§ 1000 et seq.), misdemeanors (Pen. Code, § 1001 et. seq.), child abuse (Pen. Code, § 1001.12 et seq.), contributing to the delinquency of a minor (Pen. Code, §§ 1001.70 et seq.), writing bad checks (Pen. Code, §§ 1001.60 et seq.), repeat theft crimes (Pen. Code, §§ 1001.81 et seq.), as well as for specific types of offenders including veterans (Pen. Code, §§ 1001.80 et seq.), persons with cognitive developmental disabilities (Pen. Code, § 1001.20 et seq.), and persons with mental disorders (Pen. Code, §§ 1001.36 et seq.).
   
3. Excludes specified driving under the influence offenses from pretrial diversion eligibility. (Pen. Code, § 1001.2, subd. (a).)
   
4. Provides that the district attorney of each county shall review annually any misdemeanor diversion program adopted by the county, 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. (Pen. Code, § 1001.2, subd. (b).)
   
5. States that the prosecutor is not authorized to determine whether a particular defendant shall be diverted. (Pen. Code, § 1001.2, subd. (b).)
   
6. 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. (Pen. Code, § 1001.3.)
   
7. Provides that a defendant in a diversion program is entitled to a hearing, as set forth by law, before pretrial diversion can be terminated for cause. (Pen. Code, § 1001.4.)
   
8. States that if the defendant has performed satisfactorily during the period of diversion, the criminal charges shall be dismissed at the end of the period of diversion. (Pen. Code, § 1001.7.)
   
9. Authorizes a person who has successfully completed pretrial diversion to petition a court to issue an order to seal the arrest records for the diverted offense. (Pen. Code, § 851.87.)
   
10. Provides that any record filed with the Department of Justice (DOJ) shall indicate the disposition in diverted cases. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The participant 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 participant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (Pen. Code, § 1001.9, subd. (a).)
    
11. Requires an advisement to the participant in a diversion program informing him or her that, regardless of the successful completion of diversion, the arrest record may be disclosed in response to a peace officer application request and the participant is obligated to disclose the arrest if applying for employment as a peace officer. (Pen. Code, § 1001.9, subd. (b).)
    
12. States that, notwithstanding an order to seal arrest records for a diverted offense, a criminal justice agency retains the ability to access and use those sealed records. (Pen. Code, § 1001.9, subd. (c).)
    

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “SB 394 protects dependent children from being separated from their caregiver by providing the primary caregivers with the support they need to remain in the home.
   
   “SB 394 diverts eligible defendants out of the traditional system and into the pretrial diversion program where they required to participate in programming such as: housing, employment, parenting, counseling, financial literacy, drug and alcohol treatment, or mental health screening and treatment.
   
   “Upon satisfactory completion of the diversion program, the charges will be dismissed, and the primary caregiver and dependent child will not be saddled with the debilitating collateral consequences of a criminal conviction.”
   
2. Diversion Programs: Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions. A defendant may not be required to admit guilt as a prerequisite for placement in a pretrial diversion program. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense. If diversion is not successfully completed, the criminal proceedings resume.
   
   Existing law established diversion programs for specified crimes, including: drug use (Pen. Code, §§ 1000 et seq.); misdemeanors generally (Pen. Code, § 1001 et. seq.); child abuse and neglect (Pen. Code, § 1001.12 et seq.); contributing to the delinquency of a minor (Pen. Code, §§ 1001.70 et seq.); writing bad checks (Pen. Code, §§ 1001.60 et seq.), and repeat theft crimes (Pen. Code, §§ 1001.81 et seq.). There are other diversion programs that are focused on specific types of offenders including: veterans (Pen. Code, §§ 1001.80 et seq.); persons with cognitive developmental disabilities (Pen. Code, § 1001.20 et seq.); and persons with mental disorders (Pen. Code, §§ 1001.36 et seq.).
   

This bill would authorize courts, in concurrence with the district attorney and the public defender of the county, to establish a pretrial diversion program diversion program for primary caregivers of minor children. This bill would also require that a defendant meet specific eligibility criteria including that the defendant is a custodial parent or legal guardian of a minor child, presently resides in the same household as that child, and either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that child. Further, in order to grant diversion, the court must be satisfied that the defendant determines that defendant would not pose an unreasonable risk of danger to public safety or to the custodial child, if allowed to remain in the community. A defendant charged with a serious or violent felony would be excluded from eligibility under the provisions of this bill.

1. Impact of Incarceration on Dependent Children: According to a 2017 article published by the National Institute of Justice (NIJ), children of incarcerated parents are “hidden victims” of the criminal justice system. These children often face a multitude of challenges including: psychological strain, antisocial behavior, suspension or expulsion from school, economic hardship, and criminal activity.(Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, NIJ Journal No. 278, March 2017, available at: <https://www.nij.gov/journals/278/Pages/impact-of-incarceration-on-dependent-children.aspx>.) The article acknowledges that because each child and case is unique, “It is difficult to predict how a child will fare when a parent is intermittently or continually incarcerated, and research findings on these children's risk factors are mixed.” (Ibid.)
   
   According to the NIJ, the most common consequence of parental incarceration appears to be antisocial behavior, “which describes any number of behaviors that go against social norms, including criminal acts and persistent dishonesty.” Other psychological problems include depression.
   

The NIJ article notes that research indicates that the imprisonment of a parent will lead to a cycle of intergenerational criminal behavior. Further, one study found that children who have incarcerated mothers “had much higher rates of incarceration — and even earlier and more frequent arrests — than children of incarcerated fathers.”

Another impact described in the NIJ article is economic well-being, as most children with incarcerated parents have restricted financial resources available for their support. Finally, the article notes that the research suggests that the incarceration of a parent may affect educational attainment.

As for the propensity of the problem, the article states that the estimates on the number of who have incarcerated parents vary; but that one report found that the number of children who have experienced parental incarceration may range from 1.7 million to 2.7 million. The data further shows that children from communities of color are more likely to have an incarcerated parent than white children.

1. Equal Protection Considerations: This bill would establish a separate diversion program for primary caregivers of dependent children which is not available to defendants who are not primary caregivers. A state law that provides favorable treatment to one class of persons based solely on their status, while denying other classes of persons the same treatment may raise equal protection implications.
   
   The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. Accordingly, the first prerequisite to a claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (People v. Brown (2012) 54 Cal.4th 314.)
   
   Under the provisions of this bill, the allegation would be that persons who commit the same crime might be treated differently based on whether or not the perpetrator is a parent who is primary caregiver of a dependent child.

The courts have used a three-tier system in order to determine whether a statute violates the equal protection clause: strict scrutiny, intermediate scrutiny, and minimal scrutiny. Where legislation does not burden a suspect class or a constitutionally protected right, then the legislative act faces minimal scrutiny. Equal protection of the law is denied only where there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Under the minimal level of equal protection analysis, great deference is given to legislative determinations. (Id. at p. 887.) “A state may provide for differences as long as the result does not amount to invidious discrimination. Equal protection … require[s] that a distinction made have some relevance to the purpose for which the classification is made.” (People v. Cruz (2012) 207 Cal.App.4th 664, 675, citations omitted.)

The stated goal of this primary caregiver diversion program is to avoid the detrimental impacts that parental incarceration has on minor, dependent children. This would appear to be a legitimate state interest.

Further, it should be noted that although most diversion programs are offense specific, there are several diversion programs which make eligibility contingent on the nature of the offender. For example, the Legislature established a diversion program for defendants diagnosed with qualifying mental health disorders. (Pen. Code, § 1001.36, subd. (a).) There is also a diversion program for persons with cognitive developmental disabilities. (Pen. Code, § 1001.20 et. seq.) And there is diversion program available for members of the military and veterans. (Pen. Code § 1001.80.)

Moreover, several courts have found that equal protection principles do not require the Legislature to make diversion uniformly available. (See e.g. People v. Superior Court (Skoblov) (1987) 195 Cal.App.3d 1209, 1214-1218 [addressing an equal protection challenge to misdemeanor diversion because it was not offered in all counties]; People v. Edwards (1991) 235 Cal.App.3d 1700, [addressing an equal protection challenge based on ineligibility for drug diversion based on a specific offense].)

1. Argument in Support: According to the National Association of Social Workers California Chapter, “The incarceration of a parent is an inherently traumatic event for a child of any age. A study published in the September 2018 issue of the journal Pediatrics found that the incarceration of a parent was associated with unhealthy behaviors in young adulthood, even after controlling for other variables. This finding builds on previous research which has established that parental incarceration ‘is associated with learning delays and behavioral problems [… and] is detrimental to health in childhood and adulthood,’ with significantly higher rates of asthma, HIV/AIDS, depression, anxiety, and posttraumatic stress disorder among those whose parents were incarcerated (“Health Care Use and Health Behaviors Among Young Adults With History of Parental Incarceration”). No child, of course, should live in an unsafe home; but all too often, parents are jailed for minor, nonviolent offenses, removed from their children when there is no threat to the child’s well-being. |
   
   “SB 394 (Skinner) would reduce the trauma of parental incarceration by allowing parents who are their children’s primary caregivers to complete a specially designed diversion program rather than face jail time for minor, nonviolent offenses—thus avoiding the punishment of children for their parents’ deeds.”
   
2. Argument in Opposition: According to the California District Attorneys Association, “This bill would create a new pretrial diversion scheme, singling out one class of individuals for disparate treatment under the law; allowing those who provide primary care for children, financially or otherwise, to avoid accountability for their crimes.
   
   “The following cases offer legal support as to why disparate treatment should be avoided: Eisenstadt v. Baird (1972) 405 U.S. 438 [statute permitting married persons to obtain contraceptives to prevent pregnancy but prohibiting distribution of contraceptives to single persons for that purpose violates equal protection clause]; Williams v. State (Ala. Crim. App. 1986) 494 So.2d 819 [marital exemption to forcible sodomy statute was not rationally based and thus violated equal protection clause of Fourteenth Amendment].
   
   “AB 394 would also jeopardize public safety by hiding the commission of criminal offenses to future employers who may come to rely on the integrity of the employee for financial and other sensitive matters….
   
   “In Los Angeles County alone, there were 284,433 misdemeanors filed in FY 2014-15. SB 394 would allow many of these defendants (plus a sizeable cohort of 1170(h) felons) to make the case for diversion based on a claim that he or she is the primary caregiver, whether financially or through emotional support and care. In addition to the time this would take up front, because this is pre-plea diversion, the court would have to leave all of these cases open for up to two years while the defendant participates in the program….
   
   “Finally, SB 394 seems to ignore the reality that many of these crimes have victims. The bill lacks even basic language to address how victim restitution would be impacted in the event of a case dismissal and/or during the pendency of a lengthy diversion process.
   
   “Under current law, the court already has the discretion to consider the defendant’s contribution to the family unit in determining what the appropriate sentence is for the offense committed. The probation department is in the best position to determine the appropriate services for a defendant that is placed on probation. And, the resources and infrastructure already exist for probation.”
   
3. Prior Legislation:
   
   1. AB 1065 (Jones-Sawyer), Chapter 803, Statutes of 2018, in pertinent part, created a diversion program for repeat theft offenders, and sunsets the program on January 1, 2021.
      
   2. AB 1810 (Assembly Budget Committee), Chapter 34, Statutes of 2018, allows trial courts to divert mentally ill defendants into pre-existing treatment programs, where the proposed program is consistent with the needs of the defendant and the safety of the community.
      
   3. AB 596 (Choi), of the 2017-2018 Legislative Session, would have provided that a referral to diversion qualifies as a conviction for purposes of a victim seeking and securing restitution. AB 596 was referred to this Committee and the hearing was cancelled at the request of the author.
      
   4. AB 994 (Lowenthal), of the 2013-2014 Legislative Session, would have required each county to establish and maintain a pretrial diversion program, to be administered by the district attorney of that county, and authorizes either the district attorney or the superior court to offer diversion to a defendant. AB 994 was vetoed.
      
   5. SB 1227 (Hancock), Chapter 658, Statutes of 2013, created a diversion program for veterans who commit misdemeanors or county jail-eligible felonies and who are suffering from service-related trauma or substance abuse.

REGISTERED SUPPORT / OPPOSITION:

Support

California Attorneys for Criminal Justice

California Public Defenders Association

California State PTA

Disability Rights California

Ella Baker Center for Human Rights

Friends Committee on Legislation of California

Legal Services for Prisoners with Children

National Association of Social Workers, California Chapter

Opposition

California District Attorneys Association

California State Sheriffs' Association

Los Angeles County District Attorney's Office

Riverside Sheriffs' Association

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 394

Author: Skinner (D)

Amended: 4/3/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/9/19

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Moorlach, Morrell

SUBJECT: Criminal procedure: diversion for primary caregivers of minor children

SOURCE: #cut50

DIGEST:

This bill authorizes the superior court, in agreement with the district attorney and the public defender of the county, to establish a pretrial diversion program for primary caregivers of minor children as specified.

ANALYSIS:

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. (Pen. Code, § 1001.1.)
2. Excludes specified driving under the influence offenses from pretrial diversion eligibility. (Pen. Code, § 1001.2, subd. (a).)
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 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. (Pen. Code, § 1001.2, subd. (b).)
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. (Pen. Code, § 1001.3.)
5. Provides that a divertee is entitled to a hearing, as set forth by law, before their pretrial diversion can be terminated for cause. (Pen. Code, § 1001.4.)
6. States that 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. (Pen. Code, § 1001.7.)
7. Provides that any record filed with the Department of Justice (DOJ) shall indicate the disposition in those cases diverted pursuant to these provisions. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee 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 divertee's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (Pen. Code, § 1001.9, subd. (a).)
8. Authorizes a person who has successfully completed pretrial diversion to petition a court to issue an order to seal the arrest records for the diverted offense. (Pen. Code, § 851.87.)
9. Authorizes diversion programs for specified crimes (Pen. Code, §§ 1000 et seq. for drug abuse; Pen. Code, § 1001.12 et seq. for child abuse; Pen. Code, §§ 1001.70 et seq. for contributing to the delinquency of another, Pen. Code, §§ 1001.60 et seq. for writing bad checks) and for specific types of offenders (Pen. Code, §§ 1001.80 et seq. for veterans; Pen. Code, §§ 1001.35 et seq. for persons with mental disorders).

This bill:

1. Authorizes the presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender or the contracted criminal defense office that provides the services of a public defender, to agree in writing to establish and conduct a pretrial diversion program for primary caregivers.
2. Specifies that the program shall include, but not be limited to, education, counseling, treatment and training programs.
3. Provides that the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant meets all of the following requirements:
   1. The defendant is a custodial parent or legal guardian of a child under the age of 18 years, presently resides in the same household as that child, and either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that child;
   2. The defendant has been advised of and waived the right to a speedy trial, a speedy preliminary hearing, and to a trial by jury;
   3. The defendant has been informed and agrees to comply with the requirements of the program;
   4. The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined, or to the child in their custody, if allowed to remain in the community. In making this determination, the court may consider the recency of any criminal history that would indicate a risk to public safety. The court may consider the opinions of the district attorney and the defense, and may consider the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense and any other factors that the court deems appropriate; and,
   5. The defendant is not being placed into a diversion program for any serious felony or violent felony.
4. States that if it appears that the defendant is performing unsatisfactorily in the assigned program, or if the defendant is, subsequent to entering the program, convicted of a felony or any offense that reflects a propensity for violence, the prosecuting attorney, the court on its own, or the probation department may make a motion to reinstate criminal proceedings.
5. Requires the court, after notice to the defendant, to hold a hearing to determine whether to reinstate criminal proceedings and if the court finds that the defendant is not performing satisfactorily in the assigned program or has been convicted of a felony or any offense that reflects a propensity for violence, the court shall schedule the matter for further proceedings.
6. Provides that if the defendant has performed satisfactorily in diversion, at the end of diversion, the court shall dismiss the defendant’s criminal charges.
7. Provides that upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed to never have occurred and the court shall order access to the arrest record restricted.
8. Prohibits the use of a record pertaining to the arrest or any record generated as a result of the defendant’s application for or participation in diversion without the defendant’s consent in any way that could result in the denial of any employment, benefit, license or certificate.
9. Requires the defendant to be advised that an order to seal records of an arrest after successfully completing diversion has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed records.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 4/9/19)

#cut50 (source)

American Academy of Pediatrics

California Attorneys for Criminal Justice

California Public Defenders Association

Drug Policy Alliance

Ella Baker Center for Human Rights

Initiate Justice

San Francisco Public Defender’s Office

OPPOSITION: (Verified 4/9/19)

California District Attorneys Association

Prepared by: Stella Choe / PUB. S. /

4/10/19 15:11:00

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: SB 394 Hearing Date: April 9, 2019

Subject: Criminal Procedure: Diversion for Primary Caregivers of Minor Children

HISTORY

Source: #cut50

Prior Legislation: SB 215 (Beall), Ch. 658, Stats. 2018

SB 1227 (Hancock), Ch. 658, Stats. 2013

SB 513 (Hancock), Ch. 798, Stats. 2013

AB 2124 (Lowenthal), Ch. 732, Stats. 2014

AB 994 (Lowenthal), Vetoed, 2013

AB 2199 (Harman), never heard in committee, 2006

AB 1956 (Wolk), Chapter 290, Statutes of 2004

SB 599 (Perata), Chapter 792, Statutes of 2003

Support: California Attorneys for Criminal Justice; California Public Defenders Association; Drug Policy Alliance; Ella Baker Center for Human Rights; Initiate Justice; San Francisco Public Defender’s Office

Opposition: California District Attorneys Association

PURPOSE

The purpose of this bill is to authorize the superior court, in agreement with the district attorney and the public defender of the county, to establish a pretrial diversion program for primary caregivers of minor children as specified.

Existing law 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. (Penal Code Section 1001.1.)

Existing law excludes specified driving under the influence offenses from pretrial diversion eligibility. (Pen. Code, § 1001.2, subd. (a).)

Existing law 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 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. (Pen. Code, § 1001.2, subd. (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. (Pen. Code, § 1001.3.)

Existing law provides that a divertee is entitled to a hearing, as set forth by law, before their pretrial diversion can be terminated for cause. (Pen. Code, § 1001.4.)

Existing law states that 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. (Pen. Code, § 1001.7.)

Existing law provides that any record filed with the Department of Justice (DOJ) shall indicate the disposition in those cases diverted pursuant to these provisions. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee 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 divertee's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (Pen. Code, § 1001.9, subd. (a).)

Existing law requires that the divertee be advised that, regardless of their successful completion of diversion, the arrest upon which the diversion was based may be disclosed by DOJ in response to any peace officer application request and that 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. (Pen. Code, § 1001.9, subd. (b).)

Existing law authorizes a person who has successfully completed pretrial diversion to petition a court to issue an order to seal the arrest records for the diverted offense. (Pen. Code, § 851.87.)

Existing law authorizes diversion programs for specified crimes (Pen. Code, §§ 1000 et seq. for drug abuse; Pen. Code, § 1001.12 et seq. for child abuse; Pen. Code, §§ 1001.70 et seq. for contributing to the delinquency of another, Pen. Code, §§ 1001.60 et seq. for writing bad checks) and for specific types of offenders (Pen. Code, §§ 1001.80 et seq. for veterans; Pen. Code, §§ 1001.35 et seq. for persons with mental disorders).

This bill authorizes the presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender or the contracted criminal defense office that provides the services of a public defender, to agree in writing to establish and conduct a pretrial diversion program for primary caregivers.

This bill specifies that the program shall include, but not be limited to, all of the following components:

1. Parenting classes;
2. Family and individual counseling;
3. Mental health screening, education, and treatment;
4. Family case management services;
5. Drug and alcohol treatment;
6. Domestic violence education and prevention;
7. Physical and sexual abuse counseling;
8. Anger management;
9. Vocational and educational services;
10. Job training and placement;
11. Affordable and safe housing assistance; and,
12. Financial literacy courses.

This bill provides that the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant meets all of the following requirements:

1. The defendant is a custodial parent or legal guardian of a child under the age of 18 years, presently resides in the same household as that child, and either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that child;
2. The defendant has been advised of and waived the right to a speedy trial, a speedy preliminary hearing, and to a trial by jury;
3. The defendant has been informed and agrees to comply with the requirements of the program;
4. The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined, or to the child in their custody, if allowed to remain in the community. In making this determination, the court may consider the recency of any criminal history that would indicate a risk to public safety. The court may consider the opinions of the district attorney and the defense, and may consider the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense and any other factors that the court deems appropriate; and,
5. The defendant is not being placed into a diversion program for any serious felony or violent felony.

This bill states that if it appears that the defendant is performing unsatisfactorily in the assigned program, or if the defendant is, subsequent to entering the program, convicted of a felony or any offense that reflects a propensity for violence, the prosecuting attorney, the court on its own, or the probation department may make a motion to reinstate criminal proceedings.

This bill requires the court, after notice to the defendant, to hold a hearing to determine whether to reinstate criminal proceedings and if the court finds that the defendant is not performing satisfactorily in the assigned program or has been convicted of a felony or any offense that reflects a propensity for violence, the court shall schedule the matter for further proceedings.

This bill provides that if the defendant has performed satisfactorily in diversion, at the end of diversion, the court shall dismiss the defendant’s criminal charges.

This bill states that if the court dismisses the charges, the clerk of the court shall file a record with Department of Justice indicating the disposition of the case diverted.

This bill provides that upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed to never have occurred and the court shall order access to the arrest record restricted.

This bill prohibits the use of a record pertaining to the arrest or any record generated as a result of the defendant’s application for or participation in diversion without the defendant’s consent in any way that could result in the denial of any employment, benefit, license or certificate.

This bill provides that the defendant shall be advised that, regardless of the defendant’s completion of diversion, the arrest upon which the diversion was based may be disclosed by DOJ in response to any peace officer application request and that this section does not relieve them 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.

This bill requires the defendant to be advised that an order to seal records of an arrest after successfully completing diversion has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed records.

COMMENTS

1. Need for This Bill

According to the author of this bill:

Nearly half of all people behind bars in the United States were living with minor children prior to their incarceration. It is estimated that 10 million minors in this country experience parental incarceration at some point in their childhood and half of all children have a parent with a criminal record. The most recent data collected by California, which remains over a decade old, estimated that nearly 900,000 children in California had a parent in the adult criminal justice system.

This is particularly concerning given the generational effects of criminal convictions. Children in the US with system-impacted parents are affected on all five pillars of family well-being: children with parents who have a criminal conviction, even for a minor offense, live in families who experience significant barriers to 1) income; 2) savings and assets; 3) education; 4) housing; and 5) family strength and stability. Studies show that having an arrest record was the single best predictor of diminished job prospects (more so than long term unemployment, receipt of public assistance, or obtaining a GED instead of a high school diploma).

The distinct decrease in employment prospects as a result of a parent’s criminal conviction is particularly concerning given the impact of poverty on children in developing stages, which is associated with a slower rate of vocabulary development and a reduction of overall language skills; lower educational achievement; and higher rates of child absenteeism, bullying, and withdrawal.

Given that half of all children in this country have system-impacted parents, the ramifications of saddling a primary caregiver with incarceration or a criminal conviction, cannot be understated.

SB 394 also builds upon California’s effective use of collaborative courts. California has seen encouraging and significant results from the use of collaborative and alternative courts that move away from this singular focus on punishment, and center instead on data-supported alternative methods to encourage rehabilitation. Collaborative justice courts, also aptly referred to as “problem-solving courts,” promote accountability by combining judicial supervision with rigorously monitored, data-driven rehabilitation and treatment services in lieu of incarceration. As of 2017, California had more than 420 collaborative justice courts, operating in all but three small jurisdictions, with many jurisdictions utilizing more than 4 different types of collaborative courts. SB 394 recognizes the impressive success of California’s growing use of problem-solving courts, builds upon the dearth of data documenting the often-insurmountable hardships children face when their parents suffer convictions, and draws upon successful legislation in other states.

States, such as Louisiana, Massachusetts, and Washington have all instituted similar models, and Florida, Oklahoma, Tennessee, and Texas have proposed similar laws this session.

SB 394 is in line with this national trend of recognizing the insidious effects of incarceration on dependent minors, and recognizes the new, compelling data related to the detrimental impact of a criminal conviction.

1. Diversion Generally

Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions. A defendant may not be required to admit guilt as a prerequisite for placement in a pretrial diversion program. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense. If diversion is not successfully completed, the criminal proceedings resume, however, a hearing to terminate diversion is required.

As a condition of diversion, the court may require the defendant to pay an administrative fee to cover the cost of enrollment in a diversion program. (Pen. Code, § 1001.15, subd. (a).) This fee may not exceed $300 in misdemeanor cases, $500 in felony cases, and may not exceed the actual cost of the program. (Pen. Code, § 1001.16.) Additionally, the court shall impose a diversion restitution fee on diverted defendants, except diversion of developmentally disabled defendants. (Pen. Code, § 1001.90, subd. (a).) This fee is set at the court's discretion according to the seriousness of the offense, but it may not be less than $100 or more than $1,000. (Pen. Code, § 1001.90, subd. (b).) In setting the amount of the restitution fee in excess of the $100 minimum, the court must consider any relevant factors, including, but not limited to, the defendant's ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which any person suffered losses as a result of the crime. (Pen. Code, § 1001.90, subd. (d).) The imposition of this fee is mandatory, however, the court may waive the fee for compelling and extraordinary reasons. (Pen. Code, § 1001.90, subd. (c).)

This bill authorizes courts, in concurrence with the district attorney and the public defender of the county to establish a pretrial diversion program diversion program for primary caregivers of minor children. The defendant must meet specified eligibility criteria including that the defendant is a custodial parent or legal guardian of a minor child, presently resides in the same household as that child, and either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that child.

The goal of this diversion program is to avoid the detrimental impacts that parental incarceration and a criminal convictions have on minor children, which may include loss of the caregiver’s employment, the child’s displacement from the home, emotional distress and social stigma.

1. Collaborative Courts

Collaborative courts “combine judicial supervision with rehabilitation services that are rigorously monitored and focused on recovery to reduce recidivism and improve offender outcomes.” (Collaborative Justice Courts, California Courts website, <https://www.courts.ca.gov/programs-collabjustice.htm> [as of Mar. 27, 2019].) Collaborative courts generally follow the same core principals but vary in certain ways such as eligibility criteria, length, services and treatment provided, sanctions and graduation criteria. Some operate under a pre-plea model and some on a post-plea model:

California currently has more than 425 collaborative courts in all but three small jurisdictions, with many jurisdictions having four or more court types. The most numerous types of collaborative courts include adult drug courts (85), juvenile drug courts (33), dependency drug courts (37), adult mental health courts (44), juvenile mental health courts (12), veterans’ courts (34), homeless courts (13), adult reentry courts (17), DUI courts (16), community courts (12), and peer/youth courts (72). Newer courts such as girls’ courts and CSEC courts for commercially sexually exploited children are also growing. The balance of collaborative courts includes dual diagnosis courts, family law drug courts, truancy courts, prop 36 courts, and unique courts, as well as veterans’ stand-down programs. Most drug court caseloads average between 75 and 100 participants per court, depending on court type; however, caseload sizes vary across different case types and jurisdictions.

(<https://www.courts.ca.gov/documents/CollaborativeCourts_factsheet.pdf> [as of Mar. 27, 2019.) Studies on collaborative courts have found that these courts are successful at reducing recidivism while saving the state money in collateral costs of avoiding rearrests, new court cases, jail, prison, probation time served, new treatment episodes and victimization costs arising from property crimes or crimes against the person. (Lyman, The Role of Collaborative Courts in

California’s Criminal Justice System (2016) 51 U.S.F. L.Rev. 1, 16-17.)

1. Equal Protection Considerations

The Equal Protection Clause of the Fourteenth Amendment commands that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The California Constitution has a similar provision. (Cal. Const., art. I, § 7.) An equal protection challenge is a claim that a law discriminates against a person by unequal treatment or unequal results.

This bill establishes a separate diversion program for primary caregivers which is not available to a defendant who is not a primary caregiver. A state law that provides favorable treatment to one class of defendants based solely on their status, while denying all other classes of defendants the same treatment, may have equal protection implications. If an equal protection challenge were raised to the diversion program created by this bill, the rational basis test that would be used to determine its validity rather than strict scrutiny because diversion is not a fundamental right, nor does the classification of primary caregivers affect a protected class. (People v. Edwards (1991) 235 Cal. App. 3d 1700, 1706 citing Sledge v. Superior Court (1974) 11 Cal.3d 70, 76.)

Rational basis only requires that the legislative classification is rationally related to a legitimate state interest. (People v. Edwards, supra, 235 Cal. App. 3d at 1706.) Rational basis is a deferential standard. If a law advances a legitimate state interest, it will be sustained as long as there is reasonable basis for it. (Id. at 1709.) “State Legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. Statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” (McGowan v. Maryland (1961) 366 U.S. 420, 425-46.) “[T]he Legislature may proceed to provide benefits on a step-by-step basis and need not provide, for all possible beneficiaries, the benefits offered to a particular group.” (People v. Superior Court (Skoblov) (1987) 195 Cal. App. 3d 1209, 1217 citing McDonald v. Board of Election (1969) 394 U.S. 802, 810-811; Semler v. Dental Examiners (1935) 294 U.S. 608, 610; Saal v. Workmen's Comp. Appeals Bd. (1975) 50 Cal.App.3d 291, 300.)

A legitimate state interest is at the very least anything that advances a traditional police power: “Public safety, public health, morality, peace and quiet, law and order, these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not limit it. (Berman v. Parker (1954) 348 U.S. 26, 32.) The purpose of this bill is to protect minor children from the negative societal impacts of incarceration and a criminal conviction on a family unit. This presumably is a legitimate state interest. The classification drawn by this bill authorizes a diversion program for primary caregivers of minor children. Defendants who successfully complete the diversion program would avoid criminal prosecution and incarceration. This classification does bear a reasonable relationship to the stated purpose of this bill. Thus, it is unlikely that an equal protection challenge would be successful.

1. This Legislation is Permissive Not Mandatory

This bill authorizes the court, jointly with the district attorney and the public defender of the county, to establish a pretrial diversion program for primary caregivers of minor children. The agreement to create a diversion program must be in writing which would necessitate coming to an agreement on specific policies and parameters in the implementation of such programs in each local jurisdiction that chooses to do so. The bill prohibits diverting defendants who are charged with a serious or violent felony and also provides a catch-all provision prohibiting diversion of persons who pose an unreasonable risk to public safety or a danger to the child in the defendant’s custody based on enumerated factors and any other factors that the court may deem appropriate.

This bill’s prohibitions place outer limits on what cases may be eligible for diversion, but each local jurisdiction is free to implement more restrictive policies, or to not implement a diversion program at all.

1. Argument in Support

According to Ella Baker Center for Human Rights:

The Center for American Progress (CAP) issued a report finding that children in the US with system-impacted parents are affected on all five pillars of family well-being: Children with parents who have a criminal conviction, even for a minor offense, live in families who experience significant barriers to 1) income; 2) savings and assets; 3) education; 4) housing; and 5) family strength and stability. For example, a study by the National Institute of Justice found that having an arrest record was the single best predictor of diminished job prospects (more so than long term unemployment, receipt of public assistance, or obtaining a GED instead of a high school diploma). The distinct decrease in employment prospects as a result of a parent’s criminal conviction is particularly concerning given the impact of poverty and unemployment on children in developmental stages, which is correlated with higher rates of child absenteeism, bullying, and withdrawal. Given that half of all children in this country have system-impacted parents, the ramifications of saddling a primary caregiver with a criminal conviction cannot be understated.

Further, the barriers created by a criminal conviction for or incarceration of the primary caregiver extend beyond just the caregiver and the dependent child, and implicate other family members, who often have to step in to care for the minor, as well as the foster care system.

1. Argument in Opposition

According to the California District Attorneys Association:

In Los Angeles County alone, there were 284,433 misdemeanors filed in FY 2014-15. SB 394 would allow many of those defendants (plus a sizable cohort of 1170(h) felons) to make the case for diversion based on a claim that he or she is the primary caregiver, whether financially or through emotional support and care. In addition to the time this would take up front, because this is pre-plea diversion, the court would have to leave all of these cases open for up to two years while the defendant participates in the program.

This pre-plea diversion makes the case difficult and potentially impossible to prosecute years later, when witnesses move, lose interest, or suffer memory loss as the case ages with no movement toward resolution if the person fails the diversion program. In fact, the amount of time since the crime’s commission could actually be far greater than two years, given the amount of time it may take to get a defendant to court to answer for the crime, the amount of time it takes for the defendant to convict the court to grant the diversion, and the length of the diversion program.

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