Existing law, until January 1, 2031, 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. Existing law requires the prosecuting attorney in a participating county to either refer the case to the county probation department to conduct a prefiling investigation report and determine the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is appropriate for referral. Existing law requires the county probation department or prosecuting attorneys office to consider certain factors for referral, including, among others, whether the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.

This bill would require the prosecutor or county probation department, for certain theft offenses, including shoplifting and vandalism, to determine whether, based on certain criteria, specified defendants are eligible for a theft diversion program. The bill would require the prosecuting attorney to review their file for certain factors, including whether the offense charged involved a crime of violence or threatened violence and, if the defendant is eligible, would require the attorney to file a declaration or state for the record the grounds for the determination of the defendants eligibility. The bill would require the court to dismiss the action against the defendant at the end of the period of diversion if the defendant has complied with the imposed terms and conditions of diversion. By increasing the duties on local officials, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law, until January 1, 2031, 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. Existing law requires the prosecuting attorney in a participating county to either refer the case to the county probation department to conduct a prefiling investigation report and determine the appropriateness of program placement or, if the prosecuting attorneys office operates the program, determine if the case is appropriate for referral. Existing law requires the county probation department or prosecuting attorneys office to consider certain factors for referral, including, among others, whether the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.

This bill would require the prosecutor or county probation department, for certain theft offenses, including shoplifting and vandalism, to determine whether, based on certain criteria, specified defendants are eligible for a theft diversion program. The bill would require the prosecuting attorney to review their file for certain factors, including whether the offense charged involved a crime of violence or threatened violence and, if the defendant is eligible, would require the attorney to file a declaration or state for the record the grounds for the determination of the defendants eligibility. The bill would require the court to dismiss the action against the defendant at the end of the period of diversion if the defendant has complied with the imposed terms and conditions of diversion. By increasing the duties on local officials, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law establishes pretrial diversion programs whereby a defendant accused of specified drug-related crimes may agree to waive a speedy trial and participate in treatment while criminal proceedings are suspended. Existing law states the Legislatures intent that these provisions, except as provided, not be construed to preempt other current or future pretrial or precomplaint diversion programs.

This bill would make a technical, nonsubstantive change to those provisions.

SENATE COMMITTEE ON

Senator Sabrina Cervantes, Chair

2025 - 2026 Regular Session

AB 2108 (Sharp-Collins) - Diversion: retail theft

Bill Summary:

AB 2108 would require a prosecuting attorney, whenever a defendant is charged with specified theft related offenses, to review a defendant’s file to determine whether they are eligible for the theft diversion program established by this bill.

Fiscal Impact:

Estimated $2.7 million to $13.7 million annually in cost pressures on court calendars and court workload. This bill creates a new diversion program where some of the population that will be eligible for this new program may currently be eligible for other diversion programs. It is anticipated this program will take precedence, meaning the eligible population will likely be considered for this program before any existing type of diversion as there are no restraints on how long a person can stay in this program or how many times they may cycle through. For example, if a person successfully completes this program and their misdemeanor is wiped from their record, they could reoffend with another retail-based crime and be eligible for another round of diversion.  The courts will need additional hearing time to determine suitability and then additional hearings if granted diversion, which it is anticipated many persons would be approved. Each person in diversion would receive at least one additional check-in hearing and a final hearing to determine whether the defendant successfully completed diversion or if criminal proceedings are to continue. The population will be largely dependent on how district attorneys file cases, but the best estimate is there could be thousands of these cases a year.

An eight-hour court day costs approximately $10,500 based on the hourly rate of court personnel including at minimum the judge, clerk, bailiff, court reporter, jury administrator, administrative staff, and jury per-diems. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. The FY 2026-27 Budget appropriated $70 million General Fund for this purpose (Trial Court Trust Fund, General Fund).

Potentially major costs to district attorneys’ offices to review defendant files for diversion eligibility and file written declarations or make oral records of those determinations in every case involving the listed theft and vandalism offenses. Costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates. (General Fund)

Background:

Diversion is an alternative approach to resolving criminal charges against a defendant. Instead of allowing traditional criminal proceedings to move forward, a court may, in specified circumstances, order a defendant to participate in services, treatment, or other protocols for a set period. Generally, county behavioral health and social services agencies are responsible for providing services to a defendant participating in diversion, so the immediate costs for diversion are typically borne by the counties. If the defendant complies with the court’s requirements and successfully completes diversion, the criminal charges against the defendant are dismissed, avoiding significant incarceration costs to the county or state. If the defendant does not successfully complete diversion, the criminal proceedings against them resume and the defendant may enter a plea or go to trial.

California has several diversion programs that are specific to a defendant’s experience or condition, including diversion for current and former members of the military, for people with serious mental health conditions, for people charged with certain drug offenses, and for certain primary caregivers. California law also permits a judge to order diversion for any defendant facing certain misdemeanor charges, regardless of whether the defendant fits into one of the above-listed categories.

Proposed Law:

This bill states that consideration for theft diversion shall apply whenever a case is before any court where the defendant is charged with shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, or vandalism, and it appears to the prosecuting attorney that:

• The offense charged did not involve a crime of violence or threatened violence; and,
• There is no evidence of a contemporaneous violation related to theft other than a violation of the offenses listed above.

This bill requires the prosecuting attorney to review a defendant’s file to determine whether the defendant is eligible for diversion and requires the prosecuting attorney file with the court, or state for the record, a declaration of a determination of defendant’s eligibility.

This bill authorizes a court to order a defendant referred to pretrial diversion to comply with terms, conditions, or programs that the court deems appropriate.

This bill states that at the end of the period of diversion, if the defendant has complied with the imposed terms and conditions, the court shall dismiss the action against the defendant.

This bill provides that upon successful completion, the arrest upon which diversion was imposed shall be deemed to have never occurred and the defendant may indicate in response to any question concerning their prior record that they were not arrested.

This bill prohibits a record pertaining to an arrest resulting in successful completion of diversion from, without the defendant’s consent, being used in any way that could result in the denial of any employment, benefit, license, or certificate, except for an application for a position as a peace officer.

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Jesse Arreguín, Chair

2025 - 2026 Regular

Bill No: AB 2108 Hearing Date: June 30, 2026

Subject: Diversion: retail theft

HISTORY

Source: Californians for Safety and Justice

Prior Legislation: SB 1282 (Smallwood-Cuevas), failed on the Senate Floor, 2024

AB 2294 (Jones-Sawyer), Ch. 856, Stats. of 2022

AB 1065 (Jones-Sawyer), Ch. 803, Stats. of 2018

AB 3234 (Ting), Ch. 334, Stats. of 2020.

AB 994 (Lowenthal), vetoed, 2013

AB 1844 (Fletcher), Ch. 219, Stats. of 2010

Support: ACLU California Action; California Attorneys for Criminal Justice
California Public Defenders Association; California Retailers Association; Californians for Safety and Justice; Ella Baker Center for Human Rights; Local 148 Los Angeles County Public Defender's Union; Smart Justice California

Opposition: American Petroleum and Convenience Store Association; Building Owners and Managers Association of California; California Association of Highway Patrolmen; California Business Properties Association; California Business Roundtable; California District Attorneys Association; California Hotel & Lodging Association; California Police Chiefs Association; California State Sheriffs' Association; Chief Probation Officers' of California; NAIOP California

Orange County Sheriff's Department; Peace Officers Research Association of California San Diego County District Attorney's Office

Assembly Floor Vote: 41 - 22

PURPOSE

The purpose of this bill is to require a prosecuting attorney, whenever a defendant is charged with specified theft-related offenses, to review a defendant’s file to determine whether they are eligible for the theft diversion program established by this bill.

Existing law divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)

Existing law states that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or by both. (Pen. Code, § 490.)

Existing law punishes grand theft as an alternate felony-misdemeanor (“wobbler”). (Pen. Code, § 487.)

Existing law defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950, except as specified; other cases of theft are petty theft. (Pen. Code, §§ 487-488.)

Existing law defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950. (Pen. Code, § 459.5, subd. (a).)

Existing law states that every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, is guilty of an alternate felony-misdemeanor when the value of the property exceeds $950, or guilty of a misdemeanor when the value of the property is $950 or less. (Pen. Code, § 496.)

Existing law states that every person who maliciously defaces with graffiti or other inscribed material, damages, or destroys any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism. (Pen. Code, § 594, subd. (a).)

Existing law punishes vandalism as follows:

• • If the amount of defacement, damage, or destruction is less than $400, vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than $1,000, or by both that fine and imprisonment, unless the defendant has specified priors, then the vandalism may be punished by imprisonment and a fine of up to $5,000.
  • If the amount of defacement, damage, or destruction is $400 or more, vandalism is punishable as a county jail-eligible felony, by imprisonment in county jail not exceeding one year, or by a fine of not more than $10,000.
  • If the amount of defacement, damage, or destruction is $10,000 or more, vandalism is punishable by a fine of not more than $50,000, or by both that fine and imprisonment as a wobbler. (Pen. Code, § 594, subd. (b).)

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, to 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, subds. (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. States that 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).)

Existing law authorizes, until January 1, 2031, the city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment (DEJ) program for persons who commit a theft offense or repeat theft offenses. States that the program may be conducted by the prosecuting attorney’s office or the county probation department. (Pen. Code, § 1001.81, subd. (a).)

Existing law states that if a county creates a theft diversion or DEJ program, 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 attorney’s office operates the program, determine if the case is one that is appropriate to be referred to the program. (Pen. Code, § 1001.81, subd. (c).)

Existing law provides that 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:

• Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individual’s risk and needs and the appropriateness of program placement;
• 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;
• 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 DEJ program;
• If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program; and,
• Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses. (Pen. Code, § 1001.81, subd. (c)(1)-(5).)

Existing law authorizes the prosecuting attorney to enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:

• Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
• 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. (Pen. Code, § 1001.81, subd. (e).)

Existing law specifies that repeat theft offenses for purposes of the above diversion or DEJ program 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. (Pen. Code, § 1001.81, subd. (f).)

This bill states that consideration for theft diversion shall apply whenever a case is before any court where the defendant is charged with shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, or vandalism, and it appears to the prosecuting attorney that:

• The offense charged did not involve a crime of violence or threatened violence; and,
• There is no evidence of a contemporaneous violation related to theft other than a violation of the offenses listed above.

This bill requires that the prosecuting attorney review a defendant’s file to determine whether the defendant is eligible for diversion. Requires that the prosecuting attorney file with the court, or state for the record, a declaration of a determination of defendant’s eligibility pursuant to the above factors providing the grounds for whether the defendant is eligible. Requires that information shall be made available to the defendant and their attorney.

This bill specifies that this procedure is intended to allow the court to set the hearing for pretrial diversion at the arraignment.

This bill provides that the only remedy for a defendant who is found ineligible for pretrial diversion pursuant to this bill’s provisions is a postconviction appeal.

This bill authorizes a court to order a defendant referred to pretrial diversion to comply with terms, conditions, or programs that the court deems appropriate.

This bill states that at the end of the period of diversion, if the defendant has complied with the imposed terms and conditions, the court shall dismiss the action against the defendant.

This bill provides that upon successful completion, the arrest upon which diversion was imposed shall be deemed to have never occurred and the defendant may indicate in response to any question concerning their prior record that they were not arrested.

This bill prohibits a record pertaining to an arrest resulting in successful completion of diversion from, without the defendant’s consent, being used in any way that could result in the denial of any employment, benefit, license, or certificate, except for an application for a position as a peace officer.

This bill prohibits diversion for persons who have been charged with petty theft or shoplifting with a prior offense.

This bill provides that this bill does not limit diversion eligibility under any other law.

This bill makes conforming changes.

COMMENTS

Need for This Bill

The author writes:

Voters passed Proposition 36 to address individuals caught in cycles of repeat theft and more serious criminal activity by increasing penalties, including the possibility of state prison sentences. That measure was aimed at chronic and organized offenders. However, Proposition 36 did not establish a tailored approach for people accused of less serious, non-recurrent shoplifting.

This bill fills that gap by ensuring the justice system can identify who would be better served by early intervention and targeted programming.

Theft Offenses

Existing law punishes theft in a variety of ways. Theft itself is generally classified into two categories: either grand theft, meaning the value of the property exceeds $950 unless a lower threshold is otherwise specified, or petty theft which refers to all other types of theft that do not meet the $950 threshold, with specified exceptions. (Pen. Code, § 487.) Petty theft is punishable as a misdemeanor; grand theft is generally punishable as either a felony or misdemeanor. (Pen. Code, § 489.) Burglary is the entry into an inhabited structure to commit larceny or other felony. This crime is punishable as either a felony or misdemeanor depending on the circumstances. (Pen. Code, § 459.) Buying or receiving stolen property knowing the property to be stolen is also a separate offense, punished as a misdemeanor or felony based on the value of the property. (Pen. Code, § 496.)

Proposition 47, approved by voters on November 4, 2014, directed that theft crimes of $950 or less shall be considered petty theft and be punished as a misdemeanor, with limited exceptions for individuals with specified prior convictions. Among the theft crimes made misdemeanors by Proposition 47, where the value of the property is $950 or less, were forgery, making or delivering a check with insufficient funds, petty theft, and receiving stolen property. (Pen. Code, §§ 473, 476a, 490.2, 496.) Proposition 47 also created the new offense of shoplifting, a misdemeanor, where the value of the property taken or intended to be taken is $950 or less, and, pertinent to this bill, limited the application of petty theft when someone had a prior theft conviction. (Pen. Code, § 459.5; Pen. Code, § 666.)

Prior to Proposition 47, Penal Code section 666 (the petty theft with a prior provision) provided that every person who has been convicted three or more times of petty theft, grand theft, financial crimes against elders, vehicle theft, burglary, carjacking, robbery, or a felony violation of receiving stolen property, and has served any time in custody for those offenses, upon a new conviction for petty theft, may be punished alternatively with either a felony or misdemeanor, also known as a wobbler. Proposition 47 repealed this part of Penal Code section 666 and limited its application to persons who have previously been convicted of a “super strike,” financial abuse of an elder, or an offense requiring sex offender registration.

After the passage of Proposition 47, the Legislature created the crime of “organized retail theft” which includes shoplifting schemes undertaken by two or more persons who have organized themselves to commit shoplifting for financial gain. (Pen. Code, § 490.4.) The punishment ranges from one year in the county jail (misdemeanor) to 16 months, or two, or three years in the county jail (felony), depending on the specific circumstances. The Legislature also clarified when offenses could be aggregated to meet the $950 threshold for grand theft to require the acts to be motivated by one intention, one impulse, and one plan. (Pen. Code, § 487, subd. (e).)

In 2024, Proposition 36 was approved by voters which made several changes to theft laws. First, the initiative targeted repeat theft offenders, by making a conviction for petty theft, where that person has two prior theft convictions, punishable by imprisonment in county jail for up to one year or by 16 months, or two or three years; and it made a second or subsequent conviction of petty theft with two priors punishable by imprisonment in the county jail not exceeding one year or by imprisonment in state prison. (Pen. Code, § 666.1, subd. (a).) Second, the initiative made it easier to aggregate the value of stolen property in order to trigger the $950 grand theft threshold. As discussed above, prior law authorized the value of stolen property to be aggregated to charge grand theft where the acts were motivated by one intention, one impulse, and one plan. (Pen. Code, § 487, subd. (e).) However, Proposition 36 authorized a more generous method of aggregation by stating that, in multiple cases of theft, the value of property may be aggregated into a single charge, with the sum of the value of all property or merchandise being the value considered in determining the degree of theft. (Pen. Code, § 490.3.) Third, Proposition 36 further enacted sentencing enhancements when a person takes, damages, or destroys property of at least $50,000 in the commission of a felony. (Pen. Code, § 12022.6.) Finally, Proposition 36 also allowed a sentencing enhancement of one, two, or three years to be applied when an offender acts in concert with two or more persons to take, attempt to take, damage, or destroy property, in the commission or attempted commission of a felony. (Pen. Code, § 12022.65.)

Diversion

Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions, so a defendant may complete programming. 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 (often called deferred entry of judgment). 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 pleaded guilty, would be sentenced.

In recent years, the Legislature has enacted several pre-plea diversion programs such as military diversion (SB 1227 (Hancock), Ch. 658, Stats. of 2013), mental health diversion (SB 215 (Beall), Ch. 1005, Stats. of 2017), diversion for primary caretakers (SB 394 (Skinner), Ch. 593, Stats. of 2019), and court-initiated misdemeanor diversion (AB 3234 (Ting), Ch. 334, Stats. of 2020). Drug diversion was enacted as a pre-plea program and changed to a post-plea program in 1997 (SB 1369 (Kopp), Ch. 1132, Stats. of 1996), then in 2017 changed back to a pre-plea program (AB 208 (Eggman), Ch. 778, Stats. of 2017).

Existing law authorizes a city or county prosecuting attorney or county probation department, until January 1, 2031, 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.)

Effect of This Bill

This bill creates a new pretrial diversion program specific to shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, or vandalism, for defendants who meet the statutory eligibility requirements. The bill is intended to flag certain non-violent, non-organized, theft-related and vandalism offenses for potential diversion but to leave courts’ discretion to grant diversion intact. The proponents of the bill argue that since the existing theft diversion statute in Penal Code section 1001.81 is permissive, it is inconsistently applied among counties.

This bill requires the prosecuting attorney to review a defendant’s file to determine whether a defendant meets the eligibility requirements—specifically, that the crime does not involve violence or threatened violence or any other “contemporaneous” violation relating to theft other than a violation of the offenses listed above. The prosecuting attorney must file with the court, or state for the record, a declaration of a determination of defendant’s eligibility pursuant to the above factors. Upon a declaration that the defendant is eligible, the court would be authorized to set a hearing for pretrial diversion at arraignment. The court would have discretion to grant diversion and to order the defendant to comply with terms, conditions, and programs the court deems appropriate.

Similar to other diversion programs, if a person is successful in completing the ordered terms, conditions, or programs, the charges are dismissed and the arrest cannot be used against the person, except for in an application for a position as a peace officer. Unlike some of the more recently enacted diversion programs, there is not a specified maximum term of diversion nor any language on what is to occur if a person does not successfully complete the terms.

A person who is charged with petty theft with a prior, as enacted by Proposition 36, would be ineligible for diversion. The opposition argues that the bill still erodes Proposition 36 because it would allow the dismissal of priorable offenses for purposes of petty theft with a prior.

Argument in Support

ACLU California Action writes:

Diversion reduces the need for prosecutors, judges, and probation resources, resulting in meaningful cost savings to the state. It is crucial that California takes proactive steps to create diversion programs where they do not exist in order to increase rehabilitation and save limited state resources. Increased diversion should allow individuals struggling with poverty who are pushed into crimes of necessity to avoid overly harsh imprisonment that only serves to further cycles of poverty.

Argument in Opposition

The Orange County Sheriff’s Department writes:

In the first year of implementation, Orange County has led the state in enforcement, with more than 10,000 bookings and charges filed under Proposition 36. The impact of these efforts is reflected in our public safety outcomes. Across the thirteen cities and unincorporated areas served by the Orange County Sheriff’s Department, crime declined significantly from 2024 to 2025, including a 13% reduction in overall crime, a 26% decrease in burglaries, a 21% drop in thefts, and a 33% decline in vehicle thefts.

AB 2108 would upend this progress by returning to limited accountability for those who commit property crime. Under this proposed bill nearly every thief will qualify for diversion. The bill would make those who commit petty theft, shoplifting, grand theft, receiving stolen property, and vandalism eligible for diversion. Perhaps most concerning is the fact that the bill fails to disqualify offenders with prior theft convictions. This is a direct attack on Proposition 36’s provisions that target career criminals.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Jesse Arreguín, Chair

2025 - 2026 Regular

Bill No: AB 2108 Hearing Date: June 23, 2026

Subject: Diversion: retail theft

HISTORY

Source: Californians for Safety and Justice

Prior Legislation: SB 1282 (Smallwood-Cuevas), failed on the Senate Floor, 2024

AB 2294 (Jones-Sawyer), Ch. 856, Stats. of 2022

AB 1065 (Jones-Sawyer), Ch. 803, Stats. of 2018

AB 3234 (Ting), Ch. 334, Stats. of 2020.

AB 994 (Lowenthal), vetoed, 2013

AB 1844 (Fletcher), Ch. 219, Stats. of 2010

Support: ACLU California Action; California Attorneys for Criminal Justice
California Public Defenders Association; California Retailers Association; Californians for Safety and Justice; Ella Baker Center for Human Rights; Local 148 Los Angeles County Public Defender's Union; Smart Justice California

Opposition: American Petroleum and Convenience Store Association; Building Owners and Managers Association of California; California Association of Highway Patrolmen; California Business Properties Association; California Business Roundtable; California District Attorneys Association; California Hotel & Lodging Association; California Police Chiefs Association; California State Sheriffs' Association; Chief Probation Officers' of California; NAIOP California

Orange County Sheriff's Department; Peace Officers Research Association of California San Diego County District Attorney's Office

Assembly Floor Vote: 41 - 22

PURPOSE

The purpose of this bill is to require a prosecuting attorney, whenever a defendant is charged with specified theft-related offenses, to review a defendant’s file to determine whether they are eligible for the theft diversion program established by this bill.

Existing law divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)

Existing law states that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or by both. (Pen. Code, § 490.)

Existing law punishes grand theft as an alternate felony-misdemeanor (“wobbler”). (Pen. Code, § 487.)

Existing law defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950, except as specified; other cases of theft are petty theft. (Pen. Code, §§ 487-488.)

Existing law defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950. (Pen. Code, § 459.5, subd. (a).)

Existing law states that every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, is guilty of an alternate felony-misdemeanor when the value of the property exceeds $950, or guilty of a misdemeanor when the value of the property is $950 or less. (Pen. Code, § 496.)

Existing law states that every person who maliciously defaces with graffiti or other inscribed material, damages, or destroys any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism. (Pen. Code, § 594, subd. (a).)

Existing law punishes vandalism as follows:

• • If the amount of defacement, damage, or destruction is less than $400, vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than $1,000, or by both that fine and imprisonment, unless the defendant has specified priors, then the vandalism may be punished by imprisonment and a fine of up to $5,000.
  • If the amount of defacement, damage, or destruction is $400 or more, vandalism is punishable as a county jail-eligible felony, by imprisonment in county jail not exceeding one year, or by a fine of not more than $10,000.
  • If the amount of defacement, damage, or destruction is $10,000 or more, vandalism is punishable by a fine of not more than $50,000, or by both that fine and imprisonment as a wobbler. (Pen. Code, § 594, subd. (b).)

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, to 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, subds. (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. States that 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).)

Existing law authorizes, until January 1, 2031, the city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment (DEJ) program for persons who commit a theft offense or repeat theft offenses. States that the program may be conducted by the prosecuting attorney’s office or the county probation department. (Pen. Code, § 1001.81, subd. (a).)

Existing law states that if a county creates a theft diversion or DEJ program, 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 attorney’s office operates the program, determine if the case is one that is appropriate to be referred to the program. (Pen. Code, § 1001.81, subd. (c).)

Existing law provides that 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:

• Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individual’s risk and needs and the appropriateness of program placement;
• 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;
• 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 DEJ program;
• If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program; and,
• Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses. (Pen. Code, § 1001.81, subd. (c)(1)-(5).)

Existing law authorizes the prosecuting attorney to enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:

• Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.
• 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. (Pen. Code, § 1001.81, subd. (e).)

Existing law specifies that repeat theft offenses for purposes of the above diversion or DEJ program 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. (Pen. Code, § 1001.81, subd. (f).)

This bill states that consideration for theft diversion shall apply whenever a case is before any court where the defendant is charged with shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, or vandalism, and it appears to the prosecuting attorney that:

• The offense charged did not involve a crime of violence or threatened violence; and,
• There is no evidence of a contemporaneous violation related to theft other than a violation of the offenses listed above.

This bill requires that the prosecuting attorney review a defendant’s file to determine whether the defendant is eligible for diversion. Requires that the prosecuting attorney file with the court, or state for the record, a declaration of a determination of defendant’s eligibility pursuant to the above factors providing the grounds for whether the defendant is eligible. Requires that information shall be made available to the defendant and their attorney.

This bill specifies that this procedure is intended to allow the court to set the hearing for pretrial diversion at the arraignment.

This bill provides that the only remedy for a defendant who is found ineligible for pretrial diversion pursuant to this bill’s provisions is a postconviction appeal.

This bill authorizes a court to order a defendant referred to pretrial diversion to comply with terms, conditions, or programs that the court deems appropriate.

This bill states that at the end of the period of diversion, if the defendant has complied with the imposed terms and conditions, the court shall dismiss the action against the defendant.

This bill provides that upon successful completion, the arrest upon which diversion was imposed shall be deemed to have never occurred and the defendant may indicate in response to any question concerning their prior record that they were not arrested.

This bill prohibits a record pertaining to an arrest resulting in successful completion of diversion from, without the defendant’s consent, being used in any way that could result in the denial of any employment, benefit, license, or certificate, except for an application for a position as a peace officer.

This bill prohibits diversion for persons who have been charged with petty theft or shoplifting with a prior offense.

This bill provides that this bill does not limit diversion eligibility under any other law.

This bill makes conforming changes.

COMMENTS

Need for This Bill

The author writes:

Voters passed Proposition 36 to address individuals caught in cycles of repeat theft and more serious criminal activity by increasing penalties, including the possibility of state prison sentences. That measure was aimed at chronic and organized offenders. However, Proposition 36 did not establish a tailored approach for people accused of less serious, non-recurrent shoplifting.

This bill fills that gap by ensuring the justice system can identify who would be better served by early intervention and targeted programming.

Theft Offenses

Existing law punishes theft in a variety of ways. Theft itself is generally classified into two categories: either grand theft, meaning the value of the property exceeds $950 unless a lower threshold is otherwise specified, or petty theft which refers to all other types of theft that do not meet the $950 threshold, with specified exceptions. (Pen. Code, § 487.) Petty theft is punishable as a misdemeanor; grand theft is generally punishable as either a felony or misdemeanor. (Pen. Code, § 489.) Burglary is the entry into an inhabited structure to commit larceny or other felony. This crime is punishable as either a felony or misdemeanor depending on the circumstances. (Pen. Code, § 459.) Buying or receiving stolen property knowing the property to be stolen is also a separate offense, punished as a misdemeanor or felony based on the value of the property. (Pen. Code, § 496.)

Proposition 47, approved by voters on November 4, 2014, directed that theft crimes of $950 or less shall be considered petty theft and be punished as a misdemeanor, with limited exceptions for individuals with specified prior convictions. Among the theft crimes made misdemeanors by Proposition 47, where the value of the property is $950 or less, were forgery, making or delivering a check with insufficient funds, petty theft, and receiving stolen property. (Pen. Code, §§ 473, 476a, 490.2, 496.) Proposition 47 also created the new offense of shoplifting, a misdemeanor, where the value of the property taken or intended to be taken is $950 or less, and, pertinent to this bill, limited the application of petty theft when someone had a prior theft conviction. (Pen. Code, § 459.5; Pen. Code, § 666.)

Prior to Proposition 47, Penal Code section 666 (the petty theft with a prior provision) provided that every person who has been convicted three or more times of petty theft, grand theft, financial crimes against elders, vehicle theft, burglary, carjacking, robbery, or a felony violation of receiving stolen property, and has served any time in custody for those offenses, upon a new conviction for petty theft, may be punished alternatively with either a felony or misdemeanor, also known as a wobbler. Proposition 47 repealed this part of Penal Code section 666 and limited its application to persons who have previously been convicted of a “super strike,” financial abuse of an elder, or an offense requiring sex offender registration.

After the passage of Proposition 47, the Legislature created the crime of “organized retail theft” which includes shoplifting schemes undertaken by two or more persons who have organized themselves to commit shoplifting for financial gain. (Pen. Code, § 490.4.) The punishment ranges from one year in the county jail (misdemeanor) to 16 months, or two, or three years in the county jail (felony), depending on the specific circumstances. The Legislature also clarified when offenses could be aggregated to meet the $950 threshold for grand theft to require the acts to be motivated by one intention, one impulse, and one plan. (Pen. Code, § 487, subd. (e).)

In 2024, Proposition 36 was approved by voters which made several changes to theft laws. First, the initiative targeted repeat theft offenders, by making a conviction for petty theft, where that person has two prior theft convictions, punishable by imprisonment in county jail for up to one year or by 16 months, or two or three years; and it made a second or subsequent conviction of petty theft with two priors punishable by imprisonment in the county jail not exceeding one year or by imprisonment in state prison. (Pen. Code, § 666.1, subd. (a).) Second, the initiative made it easier to aggregate the value of stolen property in order to trigger the $950 grand theft threshold. As discussed above, prior law authorized the value of stolen property to be aggregated to charge grand theft where the acts were motivated by one intention, one impulse, and one plan. (Pen. Code, § 487, subd. (e).) However, Proposition 36 authorized a more generous method of aggregation by stating that, in multiple cases of theft, the value of property may be aggregated into a single charge, with the sum of the value of all property or merchandise being the value considered in determining the degree of theft. (Pen. Code, § 490.3.) Third, Proposition 36 further enacted sentencing enhancements when a person takes, damages, or destroys property of at least $50,000 in the commission of a felony. (Pen. Code, § 12022.6.) Finally, Proposition 36 also allowed a sentencing enhancement of one, two, or three years to be applied when an offender acts in concert with two or more persons to take, attempt to take, damage, or destroy property, in the commission or attempted commission of a felony. (Pen. Code, § 12022.65.)

Diversion

Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions, so a defendant may complete programming. 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 (often called deferred entry of judgment). 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 pleaded guilty, would be sentenced.

In recent years, the Legislature has enacted several pre-plea diversion programs such as military diversion (SB 1227 (Hancock), Ch. 658, Stats. of 2013), mental health diversion (SB 215 (Beall), Ch. 1005, Stats. of 2017), diversion for primary caretakers (SB 394 (Skinner), Ch. 593, Stats. of 2019), and court-initiated misdemeanor diversion (AB 3234 (Ting), Ch. 334, Stats. of 2020). Drug diversion was enacted as a pre-plea program and changed to a post-plea program in 1997 (SB 1369 (Kopp), Ch. 1132, Stats. of 1996), then in 2017 changed back to a pre-plea program (AB 208 (Eggman), Ch. 778, Stats. of 2017).

Existing law authorizes a city or county prosecuting attorney or county probation department, until January 1, 2031, 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.)

Effect of This Bill

This bill creates a new pretrial diversion program specific to shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, or vandalism, for defendants who meet the statutory eligibility requirements. The bill is intended to flag certain non-violent, non-organized, theft-related and vandalism offenses for potential diversion but to leave courts’ discretion to grant diversion intact. The proponents of the bill argue that since the existing theft diversion statute in Penal Code section 1001.81 is permissive, it is inconsistently applied among counties.

This bill requires the prosecuting attorney to review a defendant’s file to determine whether a defendant meets the eligibility requirements—specifically, that the crime does not involve violence or threatened violence or any other “contemporaneous” violation relating to theft other than a violation of the offenses listed above. The prosecuting attorney must file with the court, or state for the record, a declaration of a determination of defendant’s eligibility pursuant to the above factors. Upon a declaration that the defendant is eligible, the court would be authorized to set a hearing for pretrial diversion at arraignment. The court would have discretion to grant diversion and to order the defendant to comply with terms, conditions, and programs the court deems appropriate.

Similar to other diversion programs, if a person is successful in completing the ordered terms, conditions, or programs, the charges are dismissed and the arrest cannot be used against the person, except for in an application for a position as a peace officer. Unlike some of the more recently enacted diversion programs, there is not a specified maximum term of diversion nor any language on what is to occur if a person does not successfully complete the terms.

A person who is charged with petty theft with a prior, as enacted by Proposition 36, would be ineligible for diversion. The opposition argues that the bill still erodes Proposition 36 because it would allow the dismissal of priorable offenses for purposes of petty theft with a prior.

Argument in Support

ACLU California Action writes:

Diversion reduces the need for prosecutors, judges, and probation resources, resulting in meaningful cost savings to the state. It is crucial that California takes proactive steps to create diversion programs where they do not exist in order to increase rehabilitation and save limited state resources. Increased diversion should allow individuals struggling with poverty who are pushed into crimes of necessity to avoid overly harsh imprisonment that only serves to further cycles of poverty.

Argument in Opposition

The Orange County Sheriff’s Department writes:

In the first year of implementation, Orange County has led the state in enforcement, with more than 10,000 bookings and charges filed under Proposition 36. The impact of these efforts is reflected in our public safety outcomes. Across the thirteen cities and unincorporated areas served by the Orange County Sheriff’s Department, crime declined significantly from 2024 to 2025, including a 13% reduction in overall crime, a 26% decrease in burglaries, a 21% drop in thefts, and a 33% decline in vehicle thefts.

AB 2108 would upend this progress by returning to limited accountability for those who commit property crime. Under this proposed bill nearly every thief will qualify for diversion. The bill would make those who commit petty theft, shoplifting, grand theft, receiving stolen property, and vandalism eligible for diversion. Perhaps most concerning is the fact that the bill fails to disqualify offenders with prior theft convictions. This is a direct attack on Proposition 36’s provisions that target career criminals.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2108

Author:(Sharp-Collins)

As Amended Ver:April 20, 2026

Majority vote

SUMMARY

Requires a prosecuting attorney, whenever a defendant is charged with specified theft-related offenses, to review a defendant′s file to determine whether they are eligible for the theft diversion program established by this bill.

Major Provisions

1. Provides that consideration for theft diversion shall apply whenever a case is before any court where the defendant is charged with shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, or vandalism.
2. Makes a defendant eligible for diversion if both of the following apply to the defendant:
   1. The offense charged did not involve a crime of violence or threatened violence; and,
   2. There is no evidence of a contemporaneous violation related to theft other than a violation of the offenses listed above.
3. States that a declaration of a determination of defendant′s eligibility pursuant to the above factors shall be filed with the court, or stated for the record providing the grounds for whether the defendant is eligible and that information shall be made available to the defendant and their attorney.
4. Specifies that this procedure is intended to allow the court to set the hearing for pretrial diversion at the arraignment.
5. Provides that the only remedy for a defendant who is found ineligible for pretrial diversion pursuant to this bill′s provisions is a postconviction appeal.
6. Authorizes a court to order a defendant referred to pretrial diversion to comply with terms conditions, or programs that the court deems appropriate.
7. Specifies the court may consider all available workforce programs, as provided.
8. States that if the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the court shall dismiss the action against the defendant.
9. Provides that upon successful completion, the arrest upon which diversion was imposed shall be deemed to have never occurred and the defendant may indicate in response to any question concerning their prior record that they were not arrested.
10. Prohibits a record pertaining to an arrest resulting in successful completion of diversion shall not, without the defendant′s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate, except for an application for a position as a peace officer.
11. Prohibits diversion for persons who have been charged with petty theft or shoplifting with a prior offense.
12. Provides that this bill does not limit diversion eligibility under any other law.
13. Makes conforming changes.

COMMENTS

According to the Author

″Voters passed Proposition 36 to address individuals caught in cycles of repeat theft and more serious criminal activity by increasing penalties, including the possibility of state prison sentences. That measure was aimed at chronic and organized offenders. However, Proposition 36 did not establish a tailored approach for people accused of less serious, non-recurrent shoplifting. This bill fills that gap by ensuring the justice system can identify who would be better served by early intervention and targeted programming.″

Arguments in Support

According to Californians for Safety and Justice, the sponsor of this bill, ″Under current law, there is not a consistent framework across all 58 counties for theft diversion. This inconsistency allows for an inequitable diversion consideration process that lacks equal opportunity for defendants to be considered for diversion on a case-by-case basis. AB 2108 mirrors and builds upon the success seen with drug diversion through Penal Code Section 1000 and brings a familiar structure and needed uniformity to the use of diversion in appropriate theft cases. This bill provides more access for defendants to be connected with appropriate resources or programs to help foster their success in the community.

″AB 2108 is a smart public safety solution that builds upon existing successful diversion infrastructure, while establishing appropriate guardrails and maintaining the discretion of the

court.″

Arguments in Opposition

According to California District Attorneys′ Association, ″Proposition 36 passed statewide with approximately 67% of the vote and received majority approval in every California county (with 65% in San Diego County). Voters were clear: repeat theft offenders should face meaningful consequences, and the cycle of endless, consequence-free theft needed to end. AB 2108 moves in the opposite direction.

″The bill creates a sweeping and overly broad diversion eligibility scheme for theft-related offenses, including petty theft, shoplifting, grand theft, receiving stolen property, and vandalism, while conspicuously failing to disqualify individuals with prior theft convictions. This omission is not incidental. It directly conflicts with the core purpose of Proposition 36, which specifically targets repeat offenders. By ignoring prior theft history, AB 2108 reopens the very loopholes voters sought to close.

″While the bill attempts to preserve Proposition 36 by excluding individuals ″charged pursuant to Section 666.1,″ this protection is illusory. AB 2108 does not exclude individuals who qualify as repeat offenders under Proposition 36—it only excludes those actually charged under that section. This creates a clear pathway to avoid Proposition 36 entirely through charging decisions, thereby diverting repeat offenders rather than holding them accountable. In practice, this bill invites the erosion of Proposition 36 on a case-by-case basis across the state.″

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Costs (local funds, General Fund) of an unknown but potentially significant amount to county prosecuting attorneys′ offices to review defendant files for diversion eligibility and file written declarations or make oral records of those determinations in every case involving the listed theft and vandalism offenses. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
2. Cost pressures (Trial Court Trust Fund) of $2.7 million to $13.7 million annually to the trial courts, per the Judicial Council, for additional hearings generated by this bill, including a suitability hearing at arraignment, at least one check-in hearing during the diversion period, and a final hearing to determine successful completion or termination. The wide range reflects significant uncertainty about the volume of cases referred to diversion, which depends on charging practices by district attorneys statewide; per the Judicial Council, thousands of cases per year could enter the program. The bill does not cap the duration of diversion or restrict the number of times a person may be granted diversion, which the Judicial Council notes could result in repeat participation that compounds court workload over time. It generally costs approximately $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a demand for increased funding for courts from the General Fund. The state budget provides annual General Fund backfills to the Trial Court Trust Fund to offset revenue reductions, totaling approximately $117.3 million in 2025-26. The Judicial Council′s estimate does not include the workload to adjudicate postconviction appeals from defendants found ineligible, which would represent additional cost pressure of an unknown amount.
3. Potential offsetting cost savings (Trial Court Trust Fund, local funds, General Fund). Diversion is generally understood to produce cost savings that partially or fully offset the new workload imposed by the bill, by removing cases from traditional prosecution before formal plea and reducing associated trial, hearing, and custody costs. The Senate and Assembly Appropriations analyses of AB 1231 (Elhawary), of this legislative session, a recent felony-diversion bill, identified analogous savings to trial courts, county jails, and potentially CDCR. Those analyses cited San Francisco data showing average per-case savings of approximately $4,000 when cases were resolved through behavioral health court ($12,101) or drug court ($9,757) rather than traditional prosecution ($16,379), and projected that diverting 10% of felony filings could save the courts over $70 million annually. The savings analogy is directional rather than precise here because AB 2108 covers a different (and largely lower-cost) offense set: most theft and vandalism filings under this bill are misdemeanors or low-level wobblers rather than felonies, and the bill expressly excludes petty theft with a prior under Penal Code Section 666.1, further limiting prison-track cases. CDCR savings, if any, would therefore be modest and limited to the subset of grand theft and receiving stolen property cases that would otherwise have resulted in a prison commitment. The net fiscal effect on the courts and counties depends on the diversion success rate and the offset between new eligibility-review workload and reduced trial/hearing/custody costs.

The Legislative Analyst′s Office recently warned of General Fund structural deficits of around $35 billion per year beginning in the 2027-28 fiscal year.

VOTES

ASM PUBLIC SAFETY: 5-2-2

YES: Schultz, Mark González, Haney, Harabedian, Sharp-Collins

NO: Alanis, Lackey

ABS, ABST OR NV: Nguyen, Ramos

ASM APPROPRIATIONS: 10-4-1

YES: Wicks, Aguiar-Curry, Calderon, Caloza, Fong, Mark González, Krell, Pellerin, Sharp-Collins, Solache

NO: Hoover, Dixon, Ta, Tangipa

ABS, ABST OR NV: Pacheco

UPDATED

VERSION: April 20, 2026

CONSULTANT: Stella Choe / PUB. S. / (916) 319-3744 FN: 0002847

Date of Hearing: May 13, 2026

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2108

Author:(Sharp-Collins) – As Amended Ver:April 20, 2026

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill establishes a theft diversion program requiring the prosecuting attorney to review a defendant’s file to determine whether the defendant is eligible for diversion whenever a case is before the court for specified theft-related and vandalism offenses.

Specifically, this bill:

1. Applies to cases involving shoplifting, forgery, grand theft, petty theft, petty theft of property valued at under $50, receiving stolen property, and vandalism.
2. Makes a defendant eligible for diversion if the offense charged did not involve violence or threatened violence and there is no evidence of a contemporaneous theft-related violation other than the listed offenses.
3. Requires the prosecuting attorney, after reviewing the defendant’s file, to file a declaration with the court (or state for the record) stating the grounds for the eligibility determination, and to make that information available to the defendant and their attorney, with the intent of allowing the court to set the diversion hearing at arraignment.
4. Authorizes the court, upon referral, to order the defendant to comply with terms, conditions, or programs the court deems appropriate, including workforce development, vocational training, and employment placement programs.
5. Provides that successful completion results in dismissal of the charge and the arrest is deemed never to have occurred, with limited exceptions for peace officer applications.
6. Excludes from eligibility persons charged with petty theft with a prior, as provided by Proposition 36.
7. Provides that the sole remedy for a defendant found ineligible is a postconviction appeal.

FISCAL EFFECT:

1. Costs (local funds, General Fund) of an unknown but potentially significant amount to county prosecuting attorneys’ offices to review defendant files for diversion eligibility and file written declarations or make oral records of those determinations in every case involving the listed theft and vandalism offenses. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
2. Cost pressures (Trial Court Trust Fund) of $2.7 million to $13.7 million annually to the trial courts, per the Judicial Council, for additional hearings generated by this bill, including a suitability hearing at arraignment, at least one check-in hearing during the diversion period, and a final hearing to determine successful completion or termination. The wide range reflects significant uncertainty about the volume of cases referred to diversion, which depends on charging practices by district attorneys statewide; per the Judicial Council, thousands of cases per year could enter the program. The bill does not cap the duration of diversion or restrict the number of times a person may be granted diversion, which the Judicial Council notes could result in repeat participation that compounds court workload over time. It generally costs approximately $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a demand for increased funding for courts from the General Fund. The state budget provides annual General Fund backfills to the Trial Court Trust Fund to offset revenue reductions, totaling approximately $117.3 million in 2025-26. The Judicial Council’s estimate does not include the workload to adjudicate postconviction appeals from defendants found ineligible, which would represent additional cost pressure of an unknown amount.
3. Potential offsetting cost savings (Trial Court Trust Fund, local funds, General Fund). Diversion is generally understood to produce cost savings that partially or fully offset the new workload imposed by the bill, by removing cases from traditional prosecution before formal plea and reducing associated trial, hearing, and custody costs. The Senate and Assembly Appropriations analyses of AB 1231 (Elhawary), of this legislative session, a recent felony-diversion bill, identified analogous savings to trial courts, county jails, and potentially CDCR. Those analyses cited San Francisco data showing average per-case savings of approximately $4,000 when cases were resolved through behavioral health court ($12,101) or drug court ($9,757) rather than traditional prosecution ($16,379), and projected that diverting 10% of felony filings could save the courts over $70 million annually. The savings analogy is directional rather than precise here because AB 2108 covers a different (and largely lower-cost) offense set: most theft and vandalism filings under this bill are misdemeanors or low-level wobblers rather than felonies, and the bill expressly excludes petty theft with a prior under Penal Code Section 666.1, further limiting prison-track cases. CDCR savings, if any, would therefore be modest and limited to the subset of grand theft and receiving stolen property cases that would otherwise have resulted in a prison commitment. The net fiscal effect on the courts and counties depends on the diversion success rate and the offset between new eligibility-review workload and reduced trial/hearing/custody costs.

The Legislative Analyst’s Office recently warned of General Fund structural deficits of around $35 billion per year beginning in the 2027-28 fiscal year.

COMMENTS:

1. Purpose. According to the author:

Voters passed Proposition 36 to address individuals caught in cycles of repeat theft and more serious criminal activity by increasing penalties, including the possibility of state prison sentences. That measure was aimed at chronic and organized offenders. However, Proposition 36 did not establish a tailored approach for people accused of less serious, non-recurrent shoplifting. This bill fills that gap by ensuring the justice system can identify who would be better served by early intervention and targeted programming.

1. Background. Existing law authorizes, until January 1, 2031, county prosecuting attorneys’ offices and probation departments to create permissive theft diversion or deferred entry of judgment programs (Penal Code Section 1001.81), and authorizes courts to offer misdemeanor diversion over the objection of the prosecutor for most non-violent offenses (Penal Code Section 1001.95). Proposition 36 (2024) made several changes to theft laws, including creating a new petty-theft-with-a-prior offense under Section 666.1 punishable by up to three years for individuals with two prior theft convictions, and allowing more generous aggregation of stolen property values to reach the $950 grand theft threshold.

This bill creates a new, parallel theft diversion program that, unlike section 1001.81, requires every prosecuting attorney statewide to review eligibility for every case involving the listed offenses and make a record of the determination. The bill preserves prosecutorial discretion in the eligibility determination itself but mandates the review-and-declaration process. The court retains discretion whether to grant diversion and what terms to impose. According to the Public Safety Committee’s analysis this bill differs from other recently enacted diversion programs, because it does not specify a maximum term of diversion or set forth procedures for what occurs if a defendant fails to successfully complete the terms — raising the prospect of ongoing court supervision workload and potential litigation over termination procedures. The bill excludes from eligibility persons charged under section 666.1, the offense enacted by Proposition 36 to address repeat theft offenders. However, as noted by the policy analysis, because charging decisions are within the prosecuting attorney’s discretion, a prosecutor could charge a repeat offender with petty theft under section 490.2 rather than section 666.1, rendering the defendant eligible for diversion under this bill notwithstanding prior theft convictions. Opponents argue this effectively reopens loopholes voters sought to close through Proposition 36.

Analysis Prepared by: Shiran Zohar / APPR. / (916) 319-2081

Date of Hearing:

Deputy Chief Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Nick Schultz, Chair

ABPCA Bill Id:AB 2108

Author:(Sharp-Collins) – As Amended Ver:March 19, 2026

As Proposed to be Amended in Committee

SUMMARY:

Requires a prosecuting attorney, whenever a defendant is charged with specified theft-related offenses, to review a defendant’s file to determine whether they are eligible for the theft diversion program established by this bill. Specifically, this bill:

1. Provides that consideration for theft diversion shall apply whenever a case is before any court where the defendant is charged with shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, or vandalism.
2. Makes a defendant eligible for diversion if both of the following apply to the defendant:
   1. The offense charged did not involve a crime of violence or threatened violence; and,
   2. There is no evidence of a contemporaneous violation related to theft other than a violation of the offenses listed above.
3. States that a declaration of a determination of defendant’s eligibility pursuant to the above factors shall be filed with the court, or stated for the record providing the grounds for whether the defendant is eligible and that information shall be made available to the defendant and their attorney.
4. Specifies that this procedure is intended to allow the court to set the hearing for pretrial diversion at the arraignment.
5. Provides that the only remedy for a defendant who is found ineligible for pretrial diversion pursuant to this bill’s provisions is a postconviction appeal.
6. Authorizes a court to order a defendant referred to pretrial diversion to comply with terms conditions, or programs that the court deems appropriate.
7. States that if the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the court shall dismiss the action against the defendant.
8. Provides that upon successful completion, the arrest upon which diversion was imposed shall be deemed to have never occurred and the defendant may indicate in response to any question concerning their prior record that they were not arrested.
9. Prohibits a record pertaining to an arrest resulting in successful completion of diversion shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate, except for an application for a position as a peace officer.
10. Prohibits diversion for persons who have been charged with petty theft or shoplifting with a prior offense.
11. Provides that this bill does not limit diversion eligibility under any other law.
12. Makes conforming changes.

EXISTING LAW:

1. Divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)
2. States that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Pen. Code, § 490.)
3. Punishes grand theft as an alternate felony-misdemeanor (“wobbler”). (Pen. Code, § 487.)
4. Defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified; other cases of theft are petty theft. (Pen. Code, §§ 487-488.)
5. Defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)
6. States that every person who prohibits buying or receiving any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, and punishes the offense as an alternate felony-misdemeanor when the value of the property exceeds $950, or as a misdemeanor when the value of the property is $950 or less. (Pen. Code, § 496.)
7. States that every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:
   1. Defaces with graffiti or other inscribed material;
   2. Damages; or,
   3. Destroys. (Pen. Code, § 594, subd. (a).)
8. Punishes vandalism as follows:
   1. If the amount of defacement, damage, or destruction is $400 or more, vandalism is punishable by as a county jail-eligible felony or in a county jail not exceeding one year, or by a fine of not more than $10,000, or if the amount of defacement, damage, or destruction is $10,000 or more, by a fine of not more than $50,000, or by both that fine and imprisonment.
   2. If the amount of defacement, damage, or destruction is less than $400, vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than $1,000, or by both that fine and imprisonment, unless the defendant has specified priors then the vandalism may be punished by imprisonment and a fine of up to $5,000. (Pen. Code, § 594, subd. (a).)
9. 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, to offer diversion to a defendant except if the defendant is charged with any of the following offenses:
   1. Any offense for which the defendant, if convicted, would be required to register as a sex offender;
   2. Any offense involving domestic violence; or,
   3. An offense of stalking. (Pen. Code, § 1001.95., subds. (a) & (e).)
10. 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).)
11. 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).)
12. 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).)
13. Authorizes, until January 1, 2031, the city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment (DEJ) program for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorney’s office or the county probation department. (Pen. Code, § 1001.81, subd. (a).)
14. States that if a county creates a theft diversion or DEJ program, 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 attorney’s office operates the program, determine if the case is one that is appropriate to be referred to the program. (Pen. Code, § 1001.81, subd. (c).)
15. Provides that 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 individual’s 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 DEJ 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; and,
    5. Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses. (Pen. Code, § 1001.81, subd. (c)(1)-(5).)
16. Authorizes the prosecuting attorney to 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. (Pen. Code, § 1001.81, subd. (e).)
17. Specifies that repeat theft offenses for purposes of the above diversion or DEJ program 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. (Pen. Code, § 1001.81, subd. (f).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Voters passed Proposition 36 to address individuals caught in cycles of repeat theft and more serious criminal activity by increasing penalties, including the possibility of state prison sentences. That measure was aimed at chronic and organized offenders. However, Proposition 36 did not establish a tailored approach for people accused of less serious, non-recurrent shoplifting.This bill fills that gap by ensuring the justice system can identify who would be better served by early intervention and targeted programming.”
   
2. 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.

Diversion programs may be pre-plea or post-plea (often called deferred entry of judgement). 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 pre-plea 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 pre-plea program and changed to a post-plea program in 1997 (SB 1369 (Kopp), chapter 1132, statutes of 1996), then in 2017 changed back to a pre-plea program (AB 208 (Eggman), chapter 778, statutes of 2017).

Existing law also authorizes a city or county prosecuting attorney or county probation department, until January 1, 2031, 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 create a new diversion program specific to theft-related and vandalism offenses for defendants who meet the statutory eligibility requirements. Specifically, the prosecuting attorney is required to review a defendant’s file to determine whether a defendant meets the eligibility requirements, specifically that the crime does not involve violence or threatened violence or any other pending theft-related or vandalism violations. The court would have discretion to grant discretion and to order the defendant to comply with terms, conditions and programs the court deems appropriate. The proponents of the bill argue that since the theft diversion statute in Penal Code section 1001.81 is permissive, it is inconsistently applied among counties.

The bill is intended to flag certain non-violent, non-organized, theft-related and vandalism offenses for potential diversion but to leave courts’ discretion to grant diversion intact. Similar to other diversion programs, if a person is successful in completing the ordered terms, conditions or programs the charges would be dismissed and the arrest cannot be used against the person, except for in an application as a peace officer. Unlike some of the more recently enacted diversion programs, there is not a specified maximum term of diversion nor any language on what is to occur if a person does not successfully complete the terms.

1. Background on Theft Laws: Existing law punishes theft in a variety of ways. Theft itself is generally classified into two categories: either grand theft, meaning the value of the property exceeds $950 unless a lower threshold is otherwise specified, or petty theft which refers to all other types of theft that do not meet the $950 threshold, with specified exceptions. (Pen. Code, § 487.) Petty theft is punishable as a misdemeanor; grand theft is generally punishable as either a felony or misdemeanor. (Pen. Code, § 489.) Burglary generally involves entry into a location to commit larceny or other felony. This crime is punishable as either a felony or misdemeanor depending on the circumstances. (Pen. Code, § 459.) Buying or receiving stolen property knowing the property to be stolen is also a separate offense. The punishment can be either punished as misdemeanor or felony based on the value of the property. (Pen. Code, § 496.)

Proposition 47, approved by voters on November 4, 2014, directed that theft crimes of $950 or less shall be considered petty theft and be punished as a misdemeanor, with limited exceptions for individuals with specified prior convictions. Among the theft crimes made misdemeanors by Proposition 47, where the value of the property is $950 or less, are forgery (Pen. Code, § 473), making or delivering a check with insufficient funds (Pen. Code, § 476a), petty theft (Pen. Code, § 490.2), and receiving stolen property (Pen. Code, § 496). (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 also created the new offense of shoplifting, a misdemeanor, where the value of the property taken or intended to be taken is $950 or less (Pen. Code, § 459.5; People v. Sherow (2015) 239 Cal.App.4th 875, 879); and, pertinent to this bill, limited the application of petty theft with a prior theft conviction. (Pen. Code, § 666; People v. Rivera, supra, 233 Cal.App.4th at p. 1091.)

Prior to Proposition 47, Penal Code section 666 (the petty theft with a prior provision) provided that every person who has been convicted three or more times of petty theft, grand theft, financial crimes against elders, vehicle theft, burglary, carjacking, robbery, or a felony violation of receiving stolen property and has served any time in custody for those offenses, upon a new conviction for petty theft may be punished alternatively with either a felony or misdemeanor, also known as a wobbler. Proposition 47 repealed this part of Penal Code section 666 and limited its application to persons who have previously been convicted of a “super strike,” financial abuse of an elder, or an offense requiring sex offender registration.

After the passage of Proposition 47, the Legislature created the crime of “organized retail theft” which includes shoplifting schemes undertaken by two or more persons who have organized themselves to commit shoplifting for financial gain. (Pen. Code, § 490.4; AB 1065 (Jones-Sawyer), Ch. 803, Stats. 2018.) The punishment ranges from one year in the county jail (misdemeanor) to 16 months, or two, or three years in the county jail (felony), depending on the specific circumstances. The Legislature also clarified when offenses could be aggregated to meet the $950 threshold for grand theft to require the acts to be motivated by one intention, one impulse, and one plan. (Pen. Code, § 487, subd. (e); AB 2356 (Rodriguez), Ch. 22, Stats. 2022.)

In 2024, Proposition 36 was approved by voters which made several changes to theft laws. First, the initiative targeted repeat theft offenders, by making a conviction for petty theft, where that person has two prior theft convictions, punishable by imprisonment in county jail for up to one year or by 16 months, or two or three years; and it made a second or subsequent conviction of petty theft with two priors punishable by imprisonment in the county jail not exceeding one year or by imprisonment in state prison. (Pen. Code, § 666.1, subd. (a).) Second, the initiative made it easier to aggregate the value of stolen property in order to trigger the $950 grand theft threshold. As discussed above, prior law authorized the value of stolen property to be aggregated to charge grand theft where the acts were motivated by one intention, one impulse, and one plan. (Pen. Code, § 487, subd. (e).) However, Proposition 36 authorized a more generous method of aggregation by stating that, in multiple cases of theft, the value of property may be aggregated into a single charge, with the sum of the value of all property or merchandise being the value considered in determining the degree of theft. (Pen. Code, § 490.3.)

This bill specifies that for specified theft offenses, including shoplifting, forgery, grand theft, petty theft, petty theft under $50, receiving stolen property, and vandalism, the prosecuting attorney shall determine whether a person is eligible for the diversion program created by this bill. If the district attorney determines that the person meets the eligibility requirements, they would be required to file a declaration with the court stating the grounds for eligibility. If the prosecuting attorney determines the defendant to be ineligible, that information shall also be made available to the defendant and their attorney. Upon a declaration that the defendant is eligible, the court would be authorized to set a hearing for pretrial diversion at arraignment. If the court grants diversion, the court may order the defendant to comply with terms conditions, or programs that the court deems appropriate. If the defendant successfully completes diversion, the court is required to dismiss the charge and the defendant would generally be granted similar benefits received in other diversion cases.

A person who is charged with petty theft with a prior, as enacted by Proposition 36, would be ineligible for diversion. Opposition argues that exclusion still erodes Proposition 36 because it would allow the dismissal of priorable offenses for purposes of petty theft with a prior.

1. Committee Amendments: The bill will be amended in committee to specify that a court may consider all available workforce programs, including, but not limited to, workforce development, vocational training and employment placement programs.
2. Argument in Support: According to Californians for Safety and Justice, the sponsor of this bill, “Under current law, there is not a consistent framework across all 58 counties for theft diversion. This inconsistency allows for an inequitable diversion consideration process that lacks equal opportunity for defendants to be considered for diversion on a case-by-case basis. AB 2108 mirrors and builds upon the success seen with drug diversion through Penal Code § 1000 and brings a familiar structure and needed uniformity to the use of diversion in appropriate theft cases. This bill provides more access for defendants to be connected with appropriate resources or programs to help foster their success in the community.

“AB 2108 is a smart public safety solution that builds upon existing successful diversion infrastructure, while establishing appropriate guardrails and maintaining the discretion of the

court. “

1. Argument in Opposition: According to California District Attorneys’ Association, “Proposition 36 passed statewide with approximately 67% of the vote and received majority approval in every California county (with 65% in San Diego County). Voters were clear: repeat theft offenders should face meaningful consequences, and the cycle of endless, consequence-free theft needed to end. AB 2108 moves in the opposite direction.

“The bill creates a sweeping and overly broad diversion eligibility scheme for theft-related offenses, including petty theft, shoplifting, grand theft, receiving stolen property, and vandalism, while conspicuously failing to disqualify individuals with prior theft convictions. This omission is not incidental. It directly conflicts with the core purpose of Proposition 36, which specifically targets repeat offenders. By ignoring prior theft history, AB 2108 reopens the very loopholes voters sought to close.

“While the bill attempts to preserve Proposition 36 by excluding individuals “charged pursuant to Section 666.1,” this protection is illusory. AB 2108 does not exclude individuals who qualify as repeat offenders under Proposition 36—it only excludes those actually charged under that section. This creates a clear pathway to avoid Proposition 36 entirely through charging decisions, thereby diverting repeat offenders rather than holding them accountable. In practice, this bill invites the erosion of Proposition 36 on a case-by-case basis across the state.”

1. Related Legislation:
   1. AB 2582 (Schultz) would require a person who commits prostitution with intent to receive compensation, money, or anything of value from another person to, for a first or second violation of those provisions, be offered a diversion program, if a program for which the defendant is eligible is available. AB 2582 is pending a hearing in the Assembly Appropriations Committee.
   2. AB 2217 (Zbur) would reauthorize, upon appropriation by the Legislature, law enforcement assisted prebooking diversion for specified offenses. AB 2217 is pending a hearing in the Assembly Appropriations Committee.
   3. AB 1231 (Elhawary) would authorize a court to exercise its discretion to grant pretrial diversion for felony offenses, except as specified. AB 1231 is pending vote on the Assembly Floor.
   4. AB 2297 (Stefani) would apply the general restitution statute applicable to defendants who are convicted of crimes to also apply to defendants who enter a diversion program. AB 2297 is pending a hearing in Assembly Appropriations Committee.
   5. AB 2698 (Ellis) would authorize the Office of Youth and Community Restoration to establish a grant program subject to appropriation by the Legislature, for counties to establish youth peer courts. AB 2698 is pending a hearing in the Assembly Appropriations Committee.
      
2. Prior Legislation:
   1. SB 1282 (Smallwood-Cuevas), of the 2023-2024 Legislative Session, would have authorized felony pretrial diversion, with specified exceptions. SB 1282 failed passage on the Senate Floor.
   2. AB 2294 (Jones-Sawyer), Chapter 856, Statutes of 2022, re-authorized until January 1, 2031, the prosecuting attorney's office or county probation department to create a diversion or DEJ program for persons who commit theft offenses.
   3. AB 1065 (Jones-Sawyer), Chapter 803, Statutes of 2018, relevant to this bill, authorized until January 1, 2021, the prosecuting attorney's office or county probation department to create a diversion or DEJ program for persons who commit theft offenses.
   4. AB 3234 (Ting), Chapter 334, Statutes of 2020, authorized a judge in the superior court in which a misdemeanor is being prosecuted to offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney, except as specified.
   5. 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.
      
   6. AB 1844 (Fletcher), Chapter 219, Statutes of 2010, amended petty theft with a prior to require three prior theft-related convictions.

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
All of US or None (HQ)
California Public Defenders Association
California Retailers Association
Californians for Safety and Justice
Center on Juvenile and Criminal Justice
Legal Services for Prisoners With Children
Los Angeles Regional Reentry Partnership (LARRP)
San Francisco Public Defender
San Quentin Skunkworks
Smart Justice California, a Project of Beyond Impact

Oppose

Arcadia Police Officers' Association
Brea Police Association
Burbank Police Officers' Association
California Association of Highway Patrolmen
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California Reserve Peace Officers Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Fullerton Police Officers' Association
Murrieta Police Officers' Association
Newport Beach Police Association
Palos Verdes Police Officers Association
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association

Analysis Prepared by:

Stella Choe / PUB. S. / (916) 319-3744