SB 1282: Crimes: diversion.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2024-05-20
Current Status:
Failed
(2024-05-24: Ordered to inactive file on request of Senator Smallwood-Cuevas.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
The bill allows counties to run diversion or deferred-entry programs for theft and repeat-theft cases through county pretrial or health departments or nonprofit contractors, and it defines what counts as a theft or repeat theft. It also lets superior-court judges offer diversion in any criminal case (not just misdemeanors), require assessments, and order people to join treatment, housing, or other services for up to 24 months while excluding certain serious violent and sexual offenses.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified.
This bill would also allow the program to be conducted by a county department providing pretrial or health care services or a nonprofit contract agency. The bill would define theft offenses for purposes of the program.
Existing law authorizes a judge in the superior court in which a misdemeanor is being prosecuted to, at the judges discretion, offer diversion to a defendant for a period not to exceed 24 months.
This bill would expand that authorization to include any cases being prosecuted, as specified. The bill would require a court that offers diversion pursuant to these provisions to assess whether to order the individual to participate in specified programs.
Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified.
This bill would instead require each county to, on or before January 1, 2026, create that diversion or deferred entry of judgment program. By increasing duties on local entities, this bill would impose a state-mandated local program.This bill would also allow the program to be conducted by a county department providing pretrial or health care services or a nonprofit contract agency. The bill would define theft offenses for purposes of the program.
Existing law authorizes a judge in the superior court in which a misdemeanor is being prosecuted to, at the judges discretion, offer diversion to a defendant for a period not to exceed 24 months.
This bill would expand that authorization to include any cases being prosecuted, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified.
This bill would instead require each county to, on or before January 1, 2026, create that diversion or deferred entry of judgment program. By increasing duties on local entities, this bill would impose a state-mandated local program.
Existing law authorizes a judge in the superior court in which a misdemeanor is being prosecuted to, at the judges discretion, offer diversion to a defendant for a period not to exceed 24 months.
This bill would expand that authorization to include any cases being prosecuted, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified.
This bill would instead require each county to, on or before January 1, 2026, create that diversion or deferred entry of judgment program. By increasing duties on local entities, this bill would impose a state-mandated local program.
Existing law authorizes a judge in the superior court in which a misdemeanor is being prosecuted to, at the judges discretion, offer diversion to a defendant for a period not to exceed 24 months.
This bill would expand that authorization to include any cases being prosecuted, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified.
This bill would make a technical, nonsubstantive change to those provisions.This bill would instead require each county to, on or before January 1, 2026, create that diversion or deferred entry of judgment program. By increasing duties on local entities, this bill would impose a state-mandated local program.
Existing law authorizes a judge in the superior court in which a misdemeanor is being prosecuted to, at the judges discretion, offer diversion to a defendant for a period not to exceed 24 months.
This bill would expand that authorization to include any cases being prosecuted, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified.
This bill would make a technical, nonsubstantive change to those provisions.
(a)Each county may create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorneys office, the county probation department, another county department providing pretrial or health care services, or a nonprofit contract agency.
(b)Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.
(c)If a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the department or prosecuting attorney shall consider, but is not limited to, all of the following factors:
(1)Any prefiling investigation report conducted by the county department or nonprofit contract agency operating the program that evaluates the individuals strengths risks, strengths, and needs, community safety, and the appropriateness of program placement.
(2)If the person demonstrates a willingness to engage in community service, restitution, or other services or mechanisms to repair the harm caused by the criminal activity and address the underlying drivers of the criminal activity.
(3)If a strength risks, strengths, and needs assessment identifies underlying substance abuse or mental health needs or other drivers of criminal activity that can be addressed through the diversion or deferred entry of judgment program.
(4)If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.
(5)Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.
(d)On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:
(1)The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.
(2)A statement of the penalty for the offense or offenses with which that person has been charged.
(e)The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:
(1)Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
(2)Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.
(f)For the purposes of this section, the following terms have the following meanings:
(1)Repeat theft offenses means being cited or convicted for misdemeanor or felony theft offenses two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.
(2)Theft offenses means misdemeanor or felony theft, including offenses defined in Section 484, burglary in the second degree as defined in Sections 459 and 460, organized retail theft as defined in Section 490.4, and theft from a store or other commercial establishment, after the completion of which the individual attempts to avoid apprehension by an employee or security guard by force or fear.
SEC. 2.The heading of Chapter 2.96 (commencing with Section 1001.95) of Title 6 of Part 2 of the Penal Code is amended to read:2.96.Court Initiated DiversionSEC. 3.Section 1001.95 of the Penal Code is amended to read:1001.95.(a)A judge in the superior court in which a case is being prosecuted may, at the judges discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b)(1)A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendants specific situation.
(2)The court may request, using existing resources, an assessment to aid in the determination of whether to apply this section to a case. A court may consider any relevant and credible evidence, including, but not limited to, a police report, preliminary hearing transcript, witness statement, statement by the defendants behavioral mental health treatment provider, medical record, or record or report by qualified medical expert, case manager, or social worker.
(3)If the court determines in its discretion to divert the case, the court shall assess whether to order the individual to participate in a federal or community-based treatment service program with a demonstrated history of working with individuals with a criminal history, which may include specializing in the treatment of mental health problems, including substance abuse, behavioral health, post-traumatic stress disorder, traumatic brain injury, sexual trauma, and other related mental health problems, or employment, housing, case management and other related needs.
(4)The court, in making an order pursuant to this section to commit a defendant to an established treatment program, shall give preference to a treatment program that has a history of successfully addressing the underlying condition relating to the persons criminal history.
(c)If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d)If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
(e)A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1)Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
(2)Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.
(3)A violation of Section 646.9.
(4)Murder or voluntary manslaughter.
(5)A violation of subdivision (b) or (c) of Section 11418.
(6)A violent felony, as defined in subdivision (c) of Section 667.5.
(7)Rape.
(8)Lewd or lascivious act on a child under 14 years of age.
(9)Assault with intent to commit rape, sodomy, or oral copulation in violation of Section 220.
(10)Commission of rape or sexual penetration in concert with another person in violation of Section 264.1.
(11)Continuous sexual abuse of a child in violation of Section 288.5.
(7)(12)Any offense for which diversion is prohibited by an initiative statute.
(f)If diversion is offered, a court shall consider a referral to housing services, behavioral health care, mental health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
(a)Each county shall, on or before January 1, 2026, may create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorneys office or office, the county probation department. department, another county department providing pretrial or health care services, or a nonprofit contract agency.
(b)Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.
(c)If a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the probation department or prosecuting attorney shall consider, but is not limited to, all of the following factors:
(1)Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individuals risk and needs strengths and needs, community safety, and the appropriateness of program placement.
(2)If the person demonstrates a willingness to engage in community service, restitution, or other services or mechanisms to repair the harm caused by the criminal activity and address the underlying drivers of the criminal activity.
(3)If a risk strength and needs assessment identifies underlying substance abuse or mental health needs or other drivers of criminal activity that can be addressed through the diversion or deferred entry of judgment program.
(4)If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.
(5)Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.
(d)On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:
(1)The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.
(2)A statement of the penalty for the offense or offenses with which that person has been charged.
(e)The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:
(1)Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
(2)Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.
(f)For the purposes of this section, repeat the following terms have the following meanings:
(1)Repeat theft offenses means being cited or convicted for misdemeanor or felony theft from a store or vehicle offenses two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.
(2)Theft offenses means misdemeanor or felony theft, including offenses defined in Section 484, burglary in the second degree as defined in Sections 459 and 460, organized retail theft as defined in Section 490.4, and theft from a store or other commercial establishment, after the completion of which the individual attempts to avoid apprehension by an employee or security guard by force or fear.
SEC. 2.The heading of Chapter 2.96 (commencing with Section 1001.95) of Title 6 of Part 2 of the Penal Code is amended to read:2.96.Court Initiated DiversionSEC. 3.Section 1001.95 of the Penal Code is amended to read:1001.95.(a)A judge in the superior court in which a case is being prosecuted may, at the judges discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b)A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendants specific situation.
(c)If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d)If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
(e)A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1)Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
(2)Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.
(3)A violation of Section 646.9.
(4)Murder or voluntary manslaughter.
(5)A violation of subdivision (b) or (c) of Section 11418.
(6)A violent felony, as defined in subdivision (c) of Section 667.5.
(7)Any offense for which diversion is prohibited by an initiative statute.
(f)If diversion is offered, a court shall consider a referral to housing services, behavioral health care, mental health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
SEC. 4.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.(a)Each county shall, on or before January 1, 2026, create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorneys office or the county probation department.
(b)Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.
(c)If a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the probation department or prosecuting attorney shall consider, but is not limited to, all of the following factors:
(1)Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individuals risk and needs and the appropriateness of program placement.
(2)If the person demonstrates a willingness to engage in community service, restitution, or other mechanisms to repair the harm caused by the criminal activity and address the underlying drivers of the criminal activity.
(3)If a risk and needs assessment identifies underlying substance abuse or mental health needs or other drivers of criminal activity that can be addressed through the diversion or deferred entry of judgment program.
(4)If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.
(5)Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.
(d)On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:
(1)The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.
(2)A statement of the penalty for the offense or offenses with which that person has been charged.
(e)The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:
(1)Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
(2)Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.
(f)For the purposes of this section, repeat theft offenses means being cited or convicted for misdemeanor or felony theft from a store or vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.
SEC. 2.The heading of Chapter 2.96 (commencing with Section 1001.95) of Title 6 of Part 2 of the Penal Code is amended to read:2.96.Court Initiated DiversionSEC. 3.Section 1001.95 of the Penal Code is amended to read:1001.95.(a)A judge in the superior court in which a case is being prosecuted may, at the judges discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b)A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendants specific situation.
(c)If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d)If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
(e)A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1)Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
(2)Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.
(3)A violation of Section 646.9.
(4)Murder or voluntary manslaughter.
(5)A violation of subdivision (b) or (c) of Section 11418.
(6)A violent felony, as defined in subdivision (c) of Section 667.5.
(6)(7)Any offense for which diversion is prohibited by an initiative statute.
(f)If diversion is offered, a court shall consider a referral to housing services, behavioral health care, mental health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
SEC. 4.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)Each county shall, on or before January 1, 2026, create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorneys office or the county probation department.
(b)Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.
(c)If a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the probation department or prosecuting attorney shall consider, but is not limited to, all of the following factors:
(1)Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individuals risk and needs and the appropriateness of program placement.
(2)If the person demonstrates a willingness to engage in community service, restitution, or other mechanisms to repair the harm caused by the criminal activity and address the underlying drivers of the criminal activity.
(3)If a risk and needs assessment identifies underlying substance abuse or mental health needs or other drivers of criminal activity that can be addressed through the diversion or deferred entry of judgment program.
(4)If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.
(5)Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.
(d)On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:
(1)The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.
(2)A statement of the penalty for the offense or offenses with which that person has been charged.
(e)The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:
(1)Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
(2)Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.
(f)For the purposes of this section, repeat theft offenses means being cited or convicted for misdemeanor or felony theft from a store or vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.
SEC. 2.The heading of Chapter 2.96 (commencing with Section 1001.95) of Title 6 of Part 2 of the Penal Code is amended to read:2.96.Court Initiated DiversionSEC. 3.Section 1001.95 of the Penal Code is amended to read:1001.95.(a)A judge in the superior court in which a case is being prosecuted may, at the judges discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b)A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendants specific situation.
(c)If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d)If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
(e)A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1)Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
(2)Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.
(3)A violation of Section 646.9.
(4)Murder or voluntary manslaughter.
(5)A violation of subdivision (b) or (c) of Section 11418.
(6)Any offense for which diversion is prohibited by an initiative statute.
(f)If diversion is offered, a court shall consider ordering drug treatment for individuals suffering from addiction, and consider a referral to housing services for unhoused individuals. a referral to housing services, behavioral health care, mental health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
SEC. 4.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)The city or county prosecuting attorney or county probation department may Each county shall, on or before January 1, 2026, create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorneys office or the county probation department.
(b)Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.
(c)If a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the probation department or prosecuting attorney shall consider, but is not limited to, all of the following factors:
(1)Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individuals risk and needs and the appropriateness of program placement.
(2)If the person demonstrates a willingness to engage in community service, restitution, or other mechanisms to repair the harm caused by the criminal activity and address the underlying drivers of the criminal activity.
(3)If a risk and needs assessment identifies underlying substance abuse or mental health needs or other drivers of criminal activity that can be addressed through the diversion or deferred entry of judgment program.
(4)If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.
(5)Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.
(d)On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:
(1)The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.
(2)A statement of the penalty for the offense or offenses with which that person has been charged.
(e)The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:
(1)Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
(2)Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.
(f)For the purposes of this section, repeat theft offenses means being cited or convicted for misdemeanor or felony theft from a store or vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.
SEC. 2.The heading of Chapter 2.96 (commencing with Section 1001.95) of Title 6 of Part 2 of the Penal Code is amended to read:2.96.Court Initiated Misdemeanor DiversionSEC. 3.Section 1001.95 of the Penal Code is amended to read:1001.95.(a)A judge in the superior court in which a misdemeanor case is being prosecuted may, at the judges discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b)A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendants specific situation.
(c)If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d)If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
(e)A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1)Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
(2)Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.
(3)A violation of Section 646.9.
(f)If diversion is offered, a court shall consider ordering drug treatment for individuals suffering from addiction, and consider a referral to housing services for unhoused individuals.
SEC. 4.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
(a)The city or county prosecuting attorney or county probation department may create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorneys office or the county probation department.
(b)Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.
(c)If a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the probation department or prosecuting attorney shall consider, but is not limited to, all of the following factors:
(1)Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individuals risk and needs and the appropriateness of program placement.
(2)If the person demonstrates a willingness to engage in community service, restitution, or other mechanisms to repair the harm caused by the criminal activity and address the underlying drivers of the criminal activity.
(3)If a risk and needs assessment identifies underlying substance abuse or mental health needs or other drivers of criminal activity that can be addressed through the diversion or deferred entry of judgment program.
(4)If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.
(5)Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.
(d)On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:
(1)The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.
(2)A statement of the penalty for the offense or offenses with which that person has been charged.
(e)The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:
(1)Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
(2)Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.
(f)For the purposes of this section, repeat theft offenses means being cited or convicted for misdemeanor or felony theft from a store or from a vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.
|
Date
|
Status
|
|---|---|
| May 24, 2024 | Ordered to inactive file on request of Senator Smallwood-Cuevas. |
| May 23, 2024 | Reconsideration granted. (Ayes 35. Noes 0. Page 4194.) |
| May 23, 2024 | Read third time. Refused passage. (Ayes 17. Noes 16. Page 4193.) |
| May 23, 2024 | Motion to reconsider made by Senator Smallwood-Cuevas. |
| May 21, 2024 | Read second time. Ordered to third reading. |
| May 20, 2024 | Read second time and amended. Ordered to second reading. |
| May 20, 2024 | From committee: Do pass as amended. (Ayes 5. Noes 2. Page 3978.) (May 16). |
| May 14, 2024 | Set for hearing May 16. |
| May 13, 2024 | May 13 hearing: Placed on APPR suspense file. |
| May 6, 2024 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on APPR. |
| May 3, 2024 | Set for hearing May 13. |
| May 2, 2024 | May 6 hearing postponed by committee. |
| Apr 26, 2024 | Set for hearing May 6. |
| Apr 24, 2024 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 23, 2024 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 4. Noes 1. Page 3731.) (April 23). |
| Apr 17, 2024 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on PUB S. |
| Apr 5, 2024 | Set for hearing April 23. |
| Apr 3, 2024 | Re-referred to Com. on PUB S. |
| Mar 19, 2024 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Feb 29, 2024 | Referred to Com. on RLS. |
| Feb 16, 2024 | From printer. May be acted upon on or after March 17. |
| Feb 15, 2024 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| May 23, 2024 | Senate 3rd Reading SB1282 Smallwood-Cuevas Reconsider | Senate Floor |
Passed |
|
| May 23, 2024 | Senate 3rd Reading SB1282 Smallwood-Cuevas | Senate Floor |
Failed |
|
| May 16, 2024 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| May 13, 2024 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 23, 2024 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| A New Way of Life Reentry Project | ** Support | |
| Aclu California Action | ** Support | |
| California Coalition for Women Prisoners | ** Support | |
| California District Attorneys Association | ** Against | |
| California Police Chiefs Association | ** Against | |
| California Public Defenders Association | ** Support | |
| California State Sheriffs' Association | ** Against | |
| Californians for Safety and Justice | ** Support | |
| Californians United for a Responsible Budget | ** Support | |
| Centinela Youth Services | ** Support | |
| Communities United for Restorative Youth Justice | ** Support | |
| Ella Baker Center For Human Rights | ** Support | |
| Essie Justice Group | ** Support | |
| Friends Committee On Legislation Of California | ** Support | |
| Initiate Justice | ** Support | |
| Initiate Justice Action | ** Support | |
| LA Defensa | ** Support | |
| Legal Services for Prisoners with Children | ** Support | |
| Los Angeles Regional Reentry Partnership | ** Support | |
| Pacific Juvenile Defender Center | ** Support | |
| Sacramento County Conflict Criminal Defender | * Support | Apr 23, 2024 |
| San Francisco Pretrial Diversion Project | ** Support | |
| Smart Justice California, a project of Tides Advocacy | ** Support | |
| Uncommon Law | ** Support | |
| Vera Institute Of Justice | ** Support | |
| Young Women's Freedom Center | ** Support |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 1282 |
THIRD READING
Bill No: SB 1282
Author: Smallwood-Cuevas (D)
Amended: 5/20/24
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 4-1, 4/23/24
AYES: Wahab, Bradford, Skinner, Wiener
NOES: Seyarto
SUBJECT: Crimes: diversion
SOURCE: Vera Institute of Justice
DIGEST:
This bill authorizes a county that opts to create a diversion or deferred entry of judgment program for theft offenses to have their program conducted by a county department providing pretrial or health care services or a nonprofit contract agency and expands the court-initiated misdemeanor diversion program to felonies, except those specified.
ANALYSIS:
Existing law:
- Authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified. (Pen. Code, § 1001.81.)
- Authorizes both misdemeanors and felonies to be diverted under the mental health diversion program for eligible defendants, except for the following offenses:
- Murder or voluntary manslaughter;
- An offense for which a person, if convicted, would be required to register as a sex offender, except indecent exposure.
- Rape;
- Lewd or lascivious act on a child under 14 years of age;
- Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220;
- Commission of rape or sexual penetration in concert with another person;
- Continuous sexual abuse of a child;
- Use or deployment of a weapon of mass destruction. (Pen. Code, §1001.36.)
- Authorizes a judge of the superior court in which a misdemeanor case is being prosecuted, at the judge’s discretion and over the objection of a prosecuting attorney, offer diversion to a defendant except if the defendant is charged with any of the following offenses:
- Any offense for which the defendant, if convicted, would be required to register as a sex offender;
- Any offense involving domestic violence; or,
- An offense of stalking. (Pen. Code, § 1001.95., subd. (a) & (e).)
- States that a judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s situation. (Pen. Code, § 1001.95., subd. (b).)
- States that if the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant. (Pen. Code, § 1001.95., subd. (c).)
- States that if it appears that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings. (Pen. Code, § 1001.95., subd. (d).)
This bill:
- Authorizes a county that opts to create a diversion or deferred entry of judgment program for theft offenses to have their program conducted by a county department providing pretrial or health care services or a nonprofit contract agency.
- Specifies that each county that opts to create a misdemeanor deferred entry of judgment or diversion program for theft offenses to consider the individual’s risks in assessing the appropriateness of the individual for the program.
- Defines “theft offenses” for purposes of the county’s diversion or deferred entry of judgment program to mean misdemeanor or felony theft, including petty theft, burglary in the second degree, organized retail theft, and theft from a store or other commercial establishment after the completion of which the individual attempts to avoid apprehension by use of force or fear.
- Authorizes a judge to offer diversion to persons charged with felonies, over a prosecutor’s objection, except if the person is charged with the following offenses:
- Any offense for which a person would be required to register as a sex offender;
- Any offense involving domestic violence;
- Stalking;
- Murder or involuntary manslaughter;
- An offense involving weapon of mass destruction;
- A violent felony, as defined in subdivision (c) of Penal Code section 667.5;
- Rape;
- Lewd or lascivious act on a child under 14;
- Assault with intent to commit rape, sodomy, or oral copulation;
- Commission of rape or sexual penetration in concert with another person;
- Continuous sexual abuse of a child; or,
- Any offense for which diversion is prohibited by an initiative statute.
- Provides that the court may request, using existing resources, an assessment to aid in the determination that this section applies to a case. A court may consider any relevant and credible evidence, including, but not limited to, a police report, preliminary hearing transcript, witness statement, statement by the defendant’s behavioral mental health treatment provider, medical record, or record or report by qualified medical expert, case manager, or social worker.
- States that if the court determines in its discretion that the case should be diverted, the court shall assess whether the individual should be ordered to participate in a federal or community-based treatment service program with a demonstrated history of working with individuals with a criminal history, which may include specializing in the treatment of mental health problems, including substance abuse, behavioral health, post-traumatic stress disorder, traumatic brain injury, sexual trauma, and other related mental health problems, or employment, housing, case management and other related needs.
- Requires the court, in making and order to commit a defendant to an established treatment program, to give preference to a treatment program that has a history of successfully addressing the underlying condition relating to the person’s criminal history.
- Requires the court, if diversion is offered, to consider a referral to housing services, behavioral health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
Comments
According to background information provided by the author’s office:
A look at 50 years of crime data has found that poverty ultimately drives property crime throughout the nation. Diversion programs, which address the root causes of crime like poverty, are a valuable and often successful tool to make our communities safer. Throughout the nation, diversion programs have been extremely successful when it comes to decreasing crime rates and alleviating the systemic issues individuals face. One study found that fewer than 4 percent of participants in a diversion program were arrested for a new crime within a year, compared to 28 percent of individuals who did not receive diversion. A California Policy Lab study found that San Francisco youth facing serious felony charges, who participated in a diversion program had a 19-percentage-point lower likelihood of a rearrest within six months, a 44 percent reduction relative to the youth who were prosecuted in the traditional juvenile justice system. Another study on San Francisco’s felony diversion program found that participating in a diversion program reduced the likelihood of receiving another felony charge and conviction for up to five years after finishing the program.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee, “The Judicial Council estimates a minor and absorbable workload impact.”
SUPPORT: (Verified 5/16/24)
Vera Institute of Justice (source)
A New Way of Life Reentry Project
ACLU California Action
California Coalition for Women Prisoners
California Public Defenders Association
Californians for Safety and Justice
Californians United for A Responsible Budget
Centinela Youth Services
Communities United for Restorative Youth Justice
Ella Baker Center for Human Rights
Essie Justice Group
Friends Committee on Legislation of California
Initiate Justice
Initiate Justice Action
LA Defensa
Legal Services for Prisoner With Children
Legal Services for Prisoners With Children
Los Angeles Regional Reentry Partnership (LARRP)
Pacific Juvenile Defender Center
San Francisco Pretrial Diversion Project
Smart Justice California, a Project of Tides Advocacy
Uncommon Law
Young Women's Freedom Center
OPPOSITION: (Verified 5/16/24)
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Prepared by: Stella Choe / PUB. S. /
5/20/24 18:52:49
**** END ****
SENATE COMMITTEE ON
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
SB 1282 (Smallwood-Cuevas) - Crimes: diversion
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
SB 1282 expands the scope of court initiated diversion to include felony cases.
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on May 16, 2024
Fiscal Impact:
The Judicial Council estimates a minor and absorbable workload impact
Committee Amendments:
Provide that certain requirements must be met before a court can order a diversion, as specified.
-- END --
SENATE COMMITTEE ON
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
SB 1282 (Smallwood-Cuevas) - Crimes: diversion
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
SB 1282 expands the scope of court initiated diversion to include felony cases.
Fiscal Impact: The Judicial Council estimates a minor and absorbable workload impact from SB 1282. (See Staff Comments.)
Background: Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions. 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. Deferred Entry of Judgement (DEJ) requires the defendant to enter an initial guilty or no contest plea, but the convicting is not entered during the time the defendant completes the program. Upon successful completion, the court dismisses the charges. However, if the defendant does not successfully complete the program, the court can enter the judgment and the defendant is sentenced base on their plea.
Data demonstrates that diversion and DEJ programs are extremely effective and cost efficient, but also face significant barriers, including lack of buy-in from law enforcement. Diversion/DEJ has been shown to substantially decrease a person’s future convictions and improve employment outcomes. Lower recidivism for participants has translated into significant cost savings. The savings are driven by immediate reductions in the cost of incarceration and by subsequent reductions in the number of crimes committed by successfully-treated diverted offenders, which leads to fewer re-arrests and re-incarcerations. The criminal justice costs savings account for the extra cost of treating diverted offenders in the community.[1]
Court Initiated Diversion: Existing law authorizes a judge to divert a misdemeanor defendant, over the objection of the prosecution, except in cases of stalking, domestic violence and any offense requiring sex offender registration. The judge has broad authority to order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the specific situation, however the case may not be diverted for a period exceeding 24 months. Whether or not to divert a misdemeanor defendant is in the trial court's discretion. However, judicial discretion is not without limits. "[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.) A trial court abuses its discretion when it exceeds the bounds of reason, all of the circumstances before it being considered. (Id., at p. 194.)
Court initiated diversion is limited to misdemeanor cases. However, felony diversion is permitted under existing law in other circumstances, including diversion for first-time nonviolent felony drug offenses, diversion for defendants with cognitive developmental disabilities, mental health diversion, diversion for theft and repeat thefts, and primary caregiver diversion.
Theft and Repeated Theft Diversion/DEJ: Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses and specifies that the prosecuting attorney is to determine who to refer to the program and who is appropriate for placement in the program. For purposes, of the program, “repeat theft offenses” means being cited or convicted for misdemeanor or felony theft from a store or vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.
Proposed Law: This bill makes several changes to court initiated diversion and theft diversion/DEJ as follows:
- Extends the discretion of the judge relating to court initiated diversion to include felony cases.
- Expands the list of offenses ineligible for court initiated diversion to include:
- Murder or voluntary manslaughter;
- Specified offences involving weapons of mass destruction;
- Violent felonies; and,
- Any offense for which diversion is prohibited by initiative statute.
- Requires, if diversion is offered, the court to consider a referral to housing services, behavioral health care, mental health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
- Allows theft diversion/DEJ for theft programs to be conducted by any county department providing pretrial or health care services, or a nonprofit contract agency.
- Requires the prefilling investigation report to evaluate the individual’s “strengths, needs and community safety,” instead of the individual’s “risk and needs.”
- Requires the department or prosecutor referring the defendant to theft diversion/DEJ to consider if a “strength and needs assessment” identifies underlying substance abuse or mental health needs or other drivers of criminal activity instead of a “risk and needs” assessment.
- Expands theft diversion/DEJ to include all thefts, not just thefts from a store or vehicle.
Staff Comments: As mentioned above, this bill does not create fiscal concerns for the judicial branch. The Judicial Council indicates that, while expanding these programs would be an increase in court workload it is offset by the workload efficiencies associated with these programs and increased court costs are anticipated to be offset by participation in the diversion programs. The costs associated with diversion hearings could be offset by savings achieved through reduced workload in not preparing for and litigating cases to trial.
Expanding diversion could result in potentially significant future cost savings to the criminal justice system and to counties in averted court proceedings and reduced local incarceration costs to the extent participation in diversion programs is successful. California county jails are increasingly overcrowded – particularly since the enactment of the Realignment Act in 2011. Overcrowding creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding caused by realignment. This is particularly salient given the present crisis in the county jails—people are dying in custody at record rates across the state.[2] This bill could help counties reduce cost pressures and harms associated with overcrowding by expanding diversion programs that redirect offenders away from incarceration and toward rehabilitation and community-based alternatives.
-- END --
Aili Malm, Dina Perrone, and Erica Magaña, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature, 119, Table 7-3 (January 2020); Aili Malm
and Dina Perrone, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature — 2020 Addendum, 15, Table 2-3 (January 2021); Vera Institute of Justice, Diversion Programs, Explained, (2022); Study: Replacing Prison Terms with Drug Abuse Treatment Could Save Billions in Criminal Justice Costs. (2013). https://www.rti.org/news/study-replacing-prison-drug-treatment-could-save. ↑
Locked Up and Dying, CalMatters (March 2024). Available at: https://calmatters.org/series/california-jails-inmate-deaths/. ↑
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: SB 1282 Hearing Date: April 23, 2024
Author: | Smallwood-Cuevas | ||
Version: | April 17, 2024 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | SC | ||
Subject: Crimes: diversion
HISTORY
Source: Vera Institute
Prior Legislation: SB 492 (Eggman), held in Assem. Approps., 2023
AB 2294 (Jones-Sawyer), Ch. 856, Stats. 2022
AB 200 (Committee on Budget), Ch. 58, Stats. 2022
AB 3234 (Ting), Ch. 334, Stats. 2020
SB 394 (Skinner), Ch. 593, Stats. 2019
SB 215 (Beall), Ch. 1005, Stats. 2017
AB 208 (Eggman), Ch. 778, Stats. 2017
AB 725 (Jackson), Ch. 179, Stats. 2017
AB 1351 (Eggman), vetoed, 2015
SB 1110 (Jackson), Ch. 655, Stats. 2014
AB 2124 (Lowenthal), Ch. 732, Stats. 2014
SB 1227 (Hancock), Ch. 658, Stats. 2013
AB 994 (Lowenthal), vetoed, 2013
AB 358 (Ammiano), vetoed, 2009
Support: A New Way of Life Reentry Project; California Public Defenders Association; Californians for Safety and Justice; Californians United for a Responsible Budget; Ella Baker Center for Human Rights; Essie Justice Group; Friends Committee on Legislation of California; Initiate Justice; Initiate Justice Action; La Defensa; Los Angeles Regional Reentry Partnership; Pacific Juveniles Defender Center; Smart Justice California; Uncommon Law; Young Women’s Freedom Center
Opposition: None known
PURPOSE
The purpose of this bill is to require each county, before January 1, 2026, to create a misdemeanor deferred entry of judgment or diversion program and to expand the court-initiated misdemeanor diversion program to felonies, except those specified.
Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified. (Pen. Code, § 1001.81.)
This bill requires each county, on or before January 1, 2026, to create a diversion or deferred entry of judgment program for a person who commits a theft offense or repeat theft offenses. (Pen. Code, § 1001.81.)
Existing law authorizes both misdemeanors and felonies to be diverted under the mental health diversion program for eligible defendants, except for the following offenses:
- Murder or voluntary manslaughter;
- An offense for which a person, if convicted, would be required to register as a sex offender, except indecent exposure.
- Rape;
- Lewd or lascivious act on a child under 14 years of age;
- Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220;
- Commission of rape or sexual penetration in concert with another person;
- Continuous sexual abuse of a child;
- Use or deployment of a weapon of mass destruction. (Pen. Code, §1001.36.)
Existing law authorizes a judge of the superior court in which a misdemeanor case is being prosecuted, at the judge’s discretion and over the objection of a prosecuting attorney, offer diversion to a defendant except if the defendant is charged with any of the following offenses:
- Any offense for which the defendant, if convicted, would be required to register as a sex offender;
- Any offense involving domestic violence; or,
- An offense of stalking. (Pen. Code, § 1001.95., subd. (a) & (e).)
Existing law states that a judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s situation. (Pen. Code, § 1001.95., subd. (b).)
Existing law states that if the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant. (Pen. Code, § 1001.95., subd. (c).)
Existing law states that if it appears that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings. (Pen. Code, § 1001.95., subd. (d).)
This bill authorizes a judge to offer diversion to persons charged with felonies, over a prosecutor’s objection, except if the person is charged with the following offenses:
- Any offense for which a person would be required to register as a sex offender;
- Any offense involving domestic violence;
- An offense of stalking;
- Murder or involuntary manslaughter;
- Use or deployment of a weapon of mass destruction; or,
- Any offense for which diversion is prohibited by an initiative statute.
This bill requires the court, if diversion is offered, to consider a referral to housing services, behavioral health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
COMMENTS
- Need for This Bill
According to the author of this bill:
Diversionary programs offer life-changing programs like education, counseling, and job training – which are proven to not only lower recidivism rates, but also reduce crime and improve long-term public safety. We cannot incarcerate ourselves out of the systemic issues that drive crime in our communities that lead to poverty, unemployment and homelessness. This bill ensures that, when appropriate, judges can offer diversionary programs as an alternative to incarceration for individuals facing felony charges. By expanding judicial discretion, we can ensure that individuals who a judge believes is better suited for diversion rather than incarceration has access to the programs they need.
- Background: Diversion
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.
Diversion programs may be pre-plea or post-plea. Pre-plea programs allow a defendant to participate in the program without admitting guilt. In post-plea programs, the defendant must first admit guilt before participating in the program. The main difference between the two types of diversion is that in a pre-plea program, if the defendant does not successfully complete the program, criminal proceedings resume and the defendant has the option to plead guilty or pursue a defense against their case. In a post-plea diversion program, if a defendant does not successfully complete the program, the defendant having already plead guilty, would be sentenced.
In recent years, the Legislature has enacted several preplea diversion programs such as military diversion (SB 1227 (Hancock), chapter 658, statutes of 2013), mental health diversion (SB 215 (Beall), chapter 1005, statutes of 2017), diversion for primary caretakers (SB 394 (Skinner), chapter 593, statutes of 2019), and court-initiated misdemeanor diversion (AB 3234 (Ting), chapter 334, statutes of 2020). Drug diversion was enacted as a preplea program and changed to a postplea program in 1997 (SB 1369 (Kopp), chapter 1132, statutes of 1996), then in 2017 changed back to a preplea program (AB 208 (Eggman), chapter 778, statutes of 2017).
Existing law authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses and specifies that the prosecuting attorney is to determine who to refer to the program and who is appropriate for placement in the program. For purposes, of the program, “repeat theft offenses” means being cited or convicted for misdemeanor or felony theft from a store or vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction. (Pen. Code, § 1001.81.)
This bill would require each county to, on or before January 1, 2026, create this type of diversion or deferred entry of judgment program.
- Court-Initiated Diversion
Existing law authorizes a judge to divert a misdemeanor defendant, over the objection of the prosecution, except in cases of stalking, domestic violence and any offense requiring sex offender registration. The judge has broad authority to order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the specific situation, however the case may not be diverted for a period exceeding 24 months. Similar to other existing diversion programs, if a defendant successfully completes diversion, the charges would be dismissed; if not, the judge is to hold a hearing to determine whether the defendant has not complied with the terms and conditions of diversion and whether the criminal proceedings should be reinstituted. Unlike some of the other existing pre-plea diversion programs such as mental health diversion or military diversion, court-initiated diversion contains no statutory requirements for the defendant to satisfy in order to be eligible other than the crimes that are specifically excluded.
Whether or not to divert a misdemeanor defendant is in the trial court's discretion. However, judicial discretion is not without limits. "[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.) A trial court abuses its discretion when it exceeds the bounds of reason, all of the circumstances before it being considered. (Id., at p. 194.)
This bill would expand the existing court-initiated diversion program to apply to also apply to felony offenses, other than those excluded. Specifically, the excluded crimes would be any crime requiring sex offender registration or any crime involving domestic violence, stalking, murder or voluntary manslaughter, use or deployment of a weapon of mass destruction, or any offense for which diversion is prohibited by an initiative statute. This list of exclusions is similar to those specifically excluded in mental health diversion, although there are a few more exclusions like stalking and offenses involving domestic violence. This bill would also require, if diversion is offered, a court to consider a referral to housing services, behavioral health care, mental health care, substance use disorder treatment, restorative justice, or other treatment, services, or programs that the court deems appropriate.
According to additional background information provided by the author’s office:
A look at 50 years of crime data has found that poverty ultimately drives property crime throughout the nation. Diversion programs, which address the root causes of crime like poverty, are a valuable and often successful tool to make our communities safer. Throughout the nation, diversion programs have been extremely successful when it comes to decreasing crime rates and alleviating the systemic issues individuals face. One study found that fewer than 4 percent of participants in a diversion program were arrested for a new crime within a year, compared to 28 percent of individuals who did not receive diversion. A California Policy Lab study found that San Francisco youth facing serious felony charges, who participated in a diversion program had a 19-percentage-point lower likelihood of a rearrest within six months, a 44 percent reduction relative to the youth who were prosecuted in the traditional juvenile justice system. Another study on San Francisco’s felony diversion program found that participating in a diversion program reduced the likelihood of receiving another felony charge and conviction for up to five years after finishing the program.
- Argument in Support
According to Vera Institute, the sponsor of this bill:
SB 1282 has two important parts. First, it requires counties to offer diversion programs for theft offenses. Currently, counties are not required to provide diversion programs for such offenses, leading to inequitable results: people charged in California have access to diversion based on geography rather than charges, needs, or other relevant factors. Every county should be required to operate at least one diversion program so that communities and law enforcement across the state can all access its range of benefits.
Second, the bill expands judicial discretion to order diversion beyond the limited circumstances eligible under current law. In doing so, California would join states as varied as Colorado, Georgia, and Arizona, which all allow diversion for a wide range of cases, including felonies. Diversion programs for misdemeanors under existing law have allowed California judges to better address the factors that drive people into the criminal legal system in the first place. When someone with felony charges can receive diversion without any safety risk to the community, expanding judges’ discretion will give them better options for maintaining community safety.
Research shows diversion programs can reduce recidivism, which keeps us all safer. Diversion focuses on the drivers behind people’s conduct, and it provides resources to address their unmet needs. Services such as treatment for substance use and mental health, job training, housing support, or education provide people with the means to thrive so that they are likely to come into contact with the criminal legal system in the future. By doing so, diversion programs are also much more cost-effective than prisons.
Diversion programs also reduce racial disparities in convictions and incarceration. Black and brown Californians remain more likely to be arrested because of over-policing, but if judges choose to extend them, diversion programs allow successful participants to avoid conviction histories. This means avoiding the long-term collateral consequences of incarceration includes difficulties accessing housing, employment, and education—consequences that are shown to increase recidivism.
-- END –
Discussed in Hearing
25MIN
Senate Floor
13MIN
Senate Standing Committee on Public Safety
8SEC
Senate Standing Committee on Public Safety
11SEC
Senate Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):