text:
The court shall consult with the prosecutor, the defense counsel, the probation department, and the appropriate regional center in order to determine whether a defendant may be diverted pursuant to this chapter. If the defendant is not represented by counsel, the court shall appoint counsel to represent the defendant. When the court suspects that a defendant may have a developmental disability, as defined in subdivision (a) of Section 1001.20, and the defendant consents to the diversion process and to the case being evaluated for eligibility for regional center services, and waives their right to a speedy trial, the court shall order the prosecutor, the probation department, and the regional center to prepare reports on specified aspects of the defendant’s case. Each report shall be prepared concurrently.

(a) The regional center shall submit a report to the probation department within 25 judicial days of the court’s order. The regional center’s report shall include a determination as to whether the defendant has a developmental disability and is eligible for regional center diversion-related treatment and habilitation services, and the regional center shall also submit to the court a proposed diversion program, individually tailored to the needs of the defendant as derived from the defendant’s individual program plan pursuant to Section 4646 of the Welfare and Institutions Code, which shall include, but not be limited to, treatment addressed to the criminal offense charged for a period of time as prescribed in Section 1001.28. The regional center’s report shall also contain a statement whether the proposed program is available for the defendant through the treatment and habilitation services of the regional centers pursuant to Section 4648 of the Welfare and Institutions Code.

(b) The prosecutor shall submit a report on specified aspects of the defendant’s case, within 30 judicial days of the court’s order, to the court, to each of the other agencies involved in the case, and to the defendant. The prosecutor’s report shall include all of the following:

(1) A statement of whether the defendant’s record indicates the defendant’s diversion pursuant to this chapter within two years prior to the alleged commission of the charged divertible offense.

(2) If the prosecutor recommends that this chapter may be applicable to the defendant, the prosecutor shall recommend either a dual or single agency diversion program and shall advise the court, the probation department, the regional center, and the defendant, in writing, of that determination within 20 judicial days of the court’s order to prepare the report.

(3) If the prosecutor recommends against diversion, the prosecutor’s report shall include a declaration in writing to state for the record the grounds upon which the recommendation was made, and the court shall determine, pursuant to Section 1001.23, whether the defendant shall be diverted.

(4) If dual agency diversion is recommended by the prosecutor, a copy of the prosecutor’s report shall also be provided by the prosecutor to the probation department, the regional center, and the defendant within the above prescribed time period. This notification shall include all of the following:

(A) A full description of the proceedings for diversion and the prosecutor’s investigation procedures.

(B) A general explanation of the role and authority of the probation department, the prosecutor, the regional center, and the court in the diversion program process.

(C) A clear statement that the court may decide in a hearing not to divert the defendant and that the defendant may have to stand trial for the alleged offense.

(D) A clear statement that should the defendant fail in meeting the terms of the diversion, or if, during the period of diversion, the defendant is subsequently charged with a felony, the defendant may be required, after a hearing, to stand trial for the original diverted offense.

(c) The probation department shall submit a report on specified aspects of the defendant’s case within 30 judicial days of the court’s order, to the court, to each of the other agencies involved in the case, and to the defendant. The probation department’s report to the court shall be based upon an investigation by the probation department and consideration of the defendant’s age, developmental disability, employment record, educational background, ties to community agencies and family, treatment history, criminal record if any, and demonstrable motivation and other mitigating factors in determining whether the defendant is a person who would benefit from a diversion-related treatment and habilitation program. The regional center’s report in full shall be appended to the probation department’s report to the court.

(d) This section is operative January 1, 2021.

history: (History: Repealed (in Sec. 18) and added by Stats. 2020, Ch. 11, Sec. 19. (AB 79) Effective June 29, 2020. Operative January 1, 2021, by its own provisions.)


kind: section

code: PEN

text:
(a) Upon the court’s receipt of the reports from the prosecutor, the probation department, and the regional center, and a determination by the regional center that the defendant does not have a developmental disability, the criminal proceedings for the offense charged shall proceed. If the defendant is found to have a developmental disability and to be eligible for regional center services, and the court determines from the various reports submitted to it that the proposed diversion program is acceptable to the court, the prosecutor, the probation department, and the regional center, and if the defendant consents to diversion and waives their right to a speedy trial, the court may order, without a hearing, that the diversion program be implemented for a period of time as prescribed in Section 1001.28.

(b) After consideration of the probation department’s report, the report of the regional center, the report of the prosecutor relating to the prosecutor’s recommendation for or against diversion, the defendant’s violence and criminal history, the relationship of the developmental disability to the charged offense, and the current charged offense, and any other relevant information, and the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community, the court shall determine if the defendant shall be diverted under either dual or single agency supervision, and referred for habilitation or rehabilitation diversion pursuant to this chapter. If the court does not deem the defendant a person who would benefit by diversion at the time of the hearing, the suspended criminal proceedings may be reinstituted, or any other disposition as authorized by law may be made, and diversion may be ordered at a later date.

(c) If a dual agency diversion program is ordered by the court, the regional center shall submit a report to the probation department on the defendant’s progress in the diversion program not less than every six months. Within five judicial days after receiving the regional center’s report, the probation department shall submit its report on the defendant’s progress in the diversion program, with the full report of the regional center appended, to the court and to the prosecutor. If single agency diversion is ordered by the court, the regional center alone shall report the defendant’s progress to the court and to the prosecutor not less than every six months.

(d) This section is operative January 1, 2021.

history: (History: Repealed (in Sec. 20) and added by Stats. 2020, Ch. 11, Sec. 21. (AB 79) Effective June 29, 2020. Operative January 1, 2021, by its own provisions.)

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.8. Diversion of Defendants With Cognitive Developmental Disabilities


text: No statement, or information procured therefrom, made by the defendant to any probation officer, the prosecutor, or any regional center designee during the course of the investigation conducted by either the regional center or the probation department pursuant to this chapter, and prior to the reporting to the probation department of the regional center’s findings of eligibility and recommendations to the court, shall be admissible in any action or proceeding brought subsequent to this investigation.

history: (History: Added by Stats. 1980, Ch. 1253, Sec. 1.)

title: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL

chapter: 2.8. Diversion of Defendants With Cognitive Developmental Disabilities


text: No statement, or information procured therefrom, with respect to the specific offense with which the defendant is charged, which is made to a probation officer, a prosecutor, or a regional center designee subsequent to the granting of diversion shall be admissible in any action or proceeding brought subsequent to the investigation.


text: In the event that diversion is either denied or is subsequently revoked once it has been granted, neither the probation investigation nor the statements or other information divulged by the defendant during the investigation by the probation department or the regional center shall be used in any sentencing procedures.


text: At such time as the defendant’s case is diverted, any bail, bond, or undertaking, or deposit in lieu thereof, on file or on behalf of the defendant shall be exonerated, and the court shall enter an order so directing.


text:
The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months.

(a) Where dual agency diversion has been ordered, the probation department shall be responsible for the progress reports. The probation department shall append to its own report a copy of the regional center’s assessment of the defendant’s progress.

(b) Where single agency diversion has been ordered, the regional center alone shall be responsible for the progress reports.


text:
(a) If it appears that the divertee is not meeting the terms and conditions of the diversion program, the court may hold a hearing and amend the program to provide for greater supervision by the responsible regional center alone, by the probation department alone, or by both the regional center and the probation department. However, notwithstanding the modification of a diversion order, the court may hold a hearing to determine whether the diverted criminal proceedings should be reinstituted if any of the following circumstances exists:

(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.

(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.

(3) The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.

(4) The defendant’s performance in the diversion program is unsatisfactory.

(b) In cases of dual agency diversion, a hearing to reinstitute the diverted criminal proceedings may be initiated by either the court, the prosecutor, the regional center, or the probation department.

(c) In cases of single agency diversion, a hearing to reinstitute the diverted criminal proceedings may be initiated only by the court, the prosecutor, or the regional center.

(d) No hearing for either of these purposes shall be held unless the moving agency or the court has given the divertee prior notice of the hearing.

(e) Where the cause of the hearing is a subsequent charge of a felony against the divertee subsequent to the diversion order, any hearing to reinstitute the diverted criminal proceedings shall be delayed until such time as probable cause has been established in court to bind the defendant over for trial on the subsequently charged felony.

(f) This section is operative January 1, 2021.

history: (History: Repealed (in Sec. 22) and added by Stats. 2020, Ch. 11, Sec. 23. (AB 79) Effective June 29, 2020. Operative January 1, 2021, by its own provisions.)


text: At any time during which the defendant is participating in a diversion program, he or she may withdraw consent to further participate in the diversion program, and at such time as such consent is withdrawn, the suspended criminal proceedings may resume or such other disposition may be made as is authorized by law.


text: If the divertee has performed satisfactorily during the period of diversion, the criminal charges shall be dismissed at the end of the diversion period.


text: Any record filed with the State Department of Justice shall indicate the disposition of those cases diverted pursuant to this chapter.


text:
(a) Any record filed with the Department of Justice shall indicate the disposition in those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(b) The divertee shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

history: (History: Amended by Stats. 1996, Ch. 743, Sec. 3. Effective January 1, 1997.)


text: Notwithstanding any other provision of law, the diversion-related individual program plan shall be fully implemented by the regional centers upon court order and approval of the diversion-related treatment and habilitation plan.


text:
The purpose of this chapter is to promote all of the following:

(a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

(b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.

(c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

history: (History: Added by Stats. 2018, Ch. 34, Sec. 24. (AB 1810) Effective June 27, 2018.)

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.8A. Diversion of Individuals with Mental Disorders


text:
(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).

(b) A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met:

(1) The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.

(2) The defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

(c) For any defendant who satisfies the eligibility requirements in subdivision (b), the court must consider whether the defendant is suitable for pretrial diversion. A defendant is suitable for pretrial diversion if all of the following criteria are met:

(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.

(2) The defendant consents to diversion and waives the defendant’s right to a speedy trial, or a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iii) of subparagraph (B) of, or clause (v) of subparagraph (C), of, paragraph (1) of subdivision (a) of Section 1370, or subparagraph (A) of paragraph (1) of subdivision (b) of Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendant’s right to a speedy trial.

(3) The defendant agrees to comply with treatment as a condition of diversion, or the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iii) of subparagraph (B) of, or clause (v) of subparagraph (C) of, paragraph (1) of subdivision (a) of Section 1370 or subparagraph (A) of paragraph (1) of subdivision (b) of Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot agree to comply with treatment.

(4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

(d) A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:

(1) Murder or voluntary manslaughter.

(2) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.

(3) Rape.

(4) Lewd or lascivious act on a child under 14 years of age.

(5) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.

(6) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.

(7) Continuous sexual abuse of a child, in violation of Section 288.5.

(8) A violation of subdivision (b) or (c) of Section 11418.

(e) At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.

(f) As used in this chapter, the following terms have the following meanings:

(1) “Pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:

(A) (i) The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.

(ii) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.

(iii) If the court refers the defendant to a county mental health agency pursuant to this section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony. That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section.

(B) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.

(C) The period during which criminal proceedings against the defendant may be diverted is limited as follows:

(i) If the defendant is charged with a felony, the period shall be no longer than two years.

(ii) If the defendant is charged with a misdemeanor, the period shall be no longer than one year.

(D) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.

(2) “Qualified mental health expert” includes, but is not limited to, a psychiatrist, psychologist, a person described in Section 5751.2 of the Welfare and Institutions Code, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert.

(g) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:

(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.

(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.

(3) The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.

(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:

(A) The defendant is performing unsatisfactorily in the assigned program.

(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.

(h) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (j) and (k). The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).

(i) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in 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.

(j) The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:

(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (i), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

(k) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, including, but not limited to, any finding that the defendant be prohibited from owning or controlling a firearm because they are a danger to themselves or others pursuant to subdivision (m), or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.

(l) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.

(m) (1) The prosecution may request an order from the court that the defendant be prohibited from owning or possessing a firearm until they successfully complete diversion because they are a danger to themselves or others pursuant to subdivision (i) of Section 8103 of the Welfare and Institutions Code.

(2) The prosecution shall bear the burden of proving, by clear and convincing evidence, both of the following are true:

(A) The defendant poses a significant danger of causing personal injury to themselves or another by having in their custody or control, owning, purchasing, possessing, or receiving a firearm.

(B) The prohibition is necessary to prevent personal injury to the defendant or any other person because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant.

(3) (A) If the court finds that the prosecution has not met that burden, the court shall not order that the person is prohibited from having, owning, purchasing, possessing, or receiving a firearm.

(B) If the court finds that the prosecution has met the burden, the court shall order that the person is prohibited, and shall inform the person that they are prohibited, from owning or controlling a firearm until they successfully complete diversion because they are a danger to themselves or others.

(4) An order imposed pursuant to this subdivision shall be in effect until the defendant has successfully completed diversion or until their firearm rights are restored pursuant to paragraph (4) of subdivision (g) of Section 8103 of the Welfare and Institutions Code.

history: (History: Amended by Stats. 2024, Ch. 647, Sec. 1.5. (SB 1400) Effective January 1, 2025.)

chapter: 2.8A. Diversion of Individuals with Mental Disorders


text: Notwithstanding any other provision of law, a county acting on behalf of one or more individual courts may by ordinance establish a program that provides for pretrial diversion by the court of any person issued a notice to appear for a traffic violation to attend any traffic violator school licensed pursuant to Chapter 1.5 (commencing with Section 11200) of Division 5 of the Vehicle Code.

history: (History: Added by Stats. 1990, Ch. 1303, Sec. 1.)

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.81. Pretrial Diversion of Traffic Violators


text:
(a) Notwithstanding any other provision of law, this chapter shall become operative in a county only if the board of supervisors adopts the provisions of this chapter by ordinance.

(b) The district attorney of each county shall review annually any diversion program established pursuant to this chapter, and no program shall continue without the approval of the district attorney. No person shall be diverted under a program unless it has been approved by the district attorney. Nothing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted.

(c) As used in this chapter, “pretrial diversion” means the procedure of postponing prosecution either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication.

history: (History: Added by Stats. 1982, Ch. 1251, Sec. 2.)

chapter: 2.9. Diversion of Misdemeanor Offenders

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.9. Diversion of Misdemeanor Offenders


text:
(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading concerning the commission of a misdemeanor, except a misdemeanor specified in subdivision (b), and it appears to the court that all of the following apply to the defendant:

(1) The defendant’s record does not indicate that probation or parole has ever been revoked without thereafter being completed.

(2) The defendant’s record does not indicate that he has been diverted pursuant to this chapter within five years prior to the filing of the accusatory pleading which charges the divertible offense.

(3) The defendant has never been convicted of a felony, and has not been convicted of a misdemeanor within five years prior to the filing of the accusatory pleading which charges the divertible offense.

(b) This chapter shall not apply to any pretrial diversion or posttrial program otherwise established by this code, nor shall this chapter be deemed to authorize any pretrial diversion or posttrial program for any person alleged to have committed a violation of Section 23152 or 23153 of the Vehicle Code.

(c) This chapter shall not apply whenever the accusatory pleading charges the commission of a misdemeanor:

(1) For which incarceration would be mandatory upon conviction of the defendant.

(2) For which registration would be required pursuant to Section 290 upon conviction of the defendant.

(3) Which the magistrate determines shall be prosecuted as a misdemeanor pursuant to paragraph (5) of subdivision (b) of Section 17.

(4) Which involves the use of force or violence against a person, unless the charge is of a violation of Section 241 or 243.

(5) For which the granting of probation is prohibited.

(6) Which is a driving offense punishable as a misdemeanor pursuant to the Vehicle Code.


text:
(a) If the defendant consents and waives his right to a speedy trial, the case shall be referred to the probation department. The probation department shall conduct such investigation as is necessary to determine whether the defendant qualifies for diversion under subdivision (a) of Section 1001.51, and whether he or she is a person who would be benefited by education, treatment or rehabilitation. The probation department shall also determine which educational, treatment or rehabilitative plan would benefit the defendant. The probation department shall report its findings and recommendation to the court. If the recommendation includes referral to a community program, the report shall contain a statement regarding the program’s willingness to accept the defendant and the manner in which the services they offer can assist the defendant in completing the diversion program successfully.

(b) No statement, or any information procured therefrom, made by the defendant to any probation officer, which is made during the course of any investigation conducted by the probation department pursuant to subdivision (b), and prior to the reporting of the probation department’s findings and recommendations to the court, shall be admissible in any action or proceeding brought subsequent to the investigation.

No statement, or any information procured therefrom, with respect to the specific offense with which the defendant is charged, which is made to any probation officer subsequent to the granting of diversion, shall be admissible in any action or proceeding.

In the event that diversion is either denied, or is subsequently revoked once it has been granted, neither the probation investigation nor statements or information divulged during that investigation shall be used in any pretrial sentencing procedures.


text:
The court shall hold a hearing and, after consideration of the probation department’s report, and any other relevant information, shall determine if the defendant consents to further proceedings under this chapter and waives his or her right to a speedy trial. If the court orders a defendant to be diverted, the court may make inquiry into the financial condition of the defendant, and upon a finding that the defendant is able in whole or in part, to pay the reasonable cost of diversion, the court may order him or her to pay all or part of such expense. The reasonable cost of diversion shall not exceed the amount determined to be the actual average cost of diversion services.

If the court does not deem the defendant to be a person who would be benefited by diversion, or if the defendant does not consent to participate, the proceedings shall continue as in any other case.

At such time that a defendant’s case is diverted, any bail bond or undertaking, or deposit in lieu thereof, on file by or on behalf of the defendant shall be exonerated, and the court shall enter an order so directing.

The period during which the further criminal proceedings against the defendant may be diverted shall be for the length of time required to complete and verify the diversion program but in no case shall it exceed two years.


text: If it appears to the probation department that the divertee is performing unsatisfactorily in the assigned program, or that the divertee is not benefiting from education, treatment or rehabilitation, or that the divertee is convicted of a misdemeanor in which force or violence is used, or if the divertee is convicted of a felony, after notice to the divertee, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the divertee is not performing satisfactorily in the assigned program, or that the divertee is not benefiting from diversion, or the court finds that the divertee has been convicted of a crime as indicated above, the criminal case shall be referred back to the court for resumption of the criminal proceedings. If the divertee has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed.


history: (History: Amended by Stats. 1996, Ch. 743, Sec. 4. Effective January 1, 1997.)


text: Upon the adoption of a resolution by the board of supervisors declaring that there are sufficient funds available to fund the program, the district attorney may create within his or her office a diversion program pursuant to this chapter for persons who write bad checks. For purposes of this chapter, “writing a bad check” means making, drawing, uttering, or delivering any check or draft upon any bank or depository for the payment of money where there is probable cause to believe there has been a violation of Section 476a. The program may be conducted by the district attorney or by a private entity under contract with the district attorney.

history: (History: Amended by Stats. 2008, Ch. 264, Sec. 1. Effective January 1, 2009.)

chapter: 2.9A. Bad Check Diversion

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.9A. Bad Check Diversion


text: The district attorney may refer a bad check case to the diversion program. Except as provided in Section 1001.64, this chapter does not limit the power of the district attorney to prosecute bad check complaints.

history: (History: Added by Stats. 1985, Ch. 1059, Sec. 1.)


text:
On receipt of a bad check case, the district attorney shall determine if the case is one which is appropriate to be referred to the bad check diversion program. In determining whether to refer a case to the bad check diversion program, the district attorney shall consider, but is not limited to, all of the following:

(a) The amount of the bad check.

(b) If the person has a prior criminal record or has previously been diverted.

(c) The number of bad check grievances against the person previously received by the district attorney.

(d) Whether there are other bad check grievances currently pending against the person.

(e) The strength of the evidence, if any, of intent to defraud the victim.


text:
On referral of a bad check case to the diversion program, a notice shall be forwarded by mail to the person alleged to have written the bad check which contains all of the following:

(a) The date and amount of the bad check.

(b) The name of the payee.

(c) The date before which the person must contact the person designated by the district attorney concerning the bad check.

(d) A statement of the penalty for issuance of a bad check.


text:
The district attorney may enter into a written agreement with the person to forego prosecution on the bad check for a period to be determined by the district attorney, not to exceed six months, pending all of the following:

(a) Completion of a class or classes conducted by the district attorney or private entity under contract with the district attorney.

(b) Full restitution being made to the victim of the bad check to hold offenders accountable for victims’ losses as a result of criminal conduct. For the purpose of this subdivision, “restitution” means the face value of the bad check or bad checks and any bank charges, as described in Section 1001.65.

(c) Full payment of the diversion fees, if any, specified in Section 1001.65.

history: (History: Amended by Stats. 2008, Ch. 264, Sec. 2. Effective January 1, 2009.)


text:
(a) A district attorney may collect a processing fee if his or her office collects and processes a bad check. The amount of the fee shall not exceed fifty dollars ($50) for each bad check in addition to the actual amount of any bank charges, including the returned check fee, if any, incurred by the victim as a result of the offense.

(b) Notwithstanding subdivision (a), when a criminal complaint is filed in a bad check case after the maker of the check fails to comply with the terms of the bad check diversion program, the court, after conviction, may impose a bad check processing fee for the recovery and processing efforts by the district attorney of not more than fifty dollars ($50) for each bad check in addition to the actual amount of any bank charges incurred by the victim as a result of the offense, including the returned check fee, if any, not to exceed one thousand two hundred dollars ($1,200) in the aggregate. The court also may, as a condition of probation, require a defendant to participate in and successfully complete a check writing education class. If so required, the court shall make inquiry into the financial condition of the defendant and, upon a finding that the defendant is able in whole or part to pay the expense of the education class, the court may order him or her to pay for all or part of that expense.

(c) If the district attorney elects to collect any fee for bank charges incurred by the victim pursuant to this section, including any fee charged for a returned check, that fee shall be paid to the victim for any bank fees that the victim may have been assessed. In no event shall reimbursement of a bank charge to the victim pursuant to subdivision (a) or (b) exceed fifteen dollars ($15) per check.

history: (History: Amended by Stats. 2008, Ch. 264, Sec. 3. Effective January 1, 2009.)


text: At no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a precomplaint diversion program.


text: No statement, or information procured therefrom, made by the defendant in connection with the determination of his or her eligibility for diversion, and no statement, or information procured therefrom, made by the defendant, subsequent to the granting of diversion or while participating in the program, and no information contained in any report made with respect thereto, and no statement or other information concerning the defendant’s participation in the program shall be admissible in any action or proceeding.


text:
(a) Every local prosecutor with jurisdiction to prosecute violations of Section 272 shall review annually any diversion program established pursuant to this chapter, and no program shall commence or continue without the approval of the local prosecutor. No person shall be diverted under a program unless it has been approved by the local prosecutor. Nothing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted.

(b) As used in this chapter, “pretrial diversion” means the procedure of postponing prosecution either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication.

history: (History: Added by Stats. 1988, Ch. 1256, Sec. 3. Effective September 26, 1988.)

chapter: 2.9B. Parental Diversion

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.9B. Parental Diversion


text:
This chapter shall apply whenever a case is before any court upon an accusatory pleading alleging a parent or legal guardian to have violated Section 272 with respect to his or her minor child, and all of the following apply to the defendant:

(a) The defendant’s record does not indicate that probation or parole has ever been revoked without thereafter being completed.

(b) The defendant’s record does not indicate that he or she has previously been diverted pursuant to this chapter.

history: (History: Amended by Stats. 1989, Ch. 144, Sec. 2.)


text:
(a) If the defendant consents and waives his or her right to a speedy trial, the case shall be referred to the probation department. The probation department shall conduct an investigation as is necessary to determine whether the defendant qualifies for diversion under this chapter, and whether he or she is a person who would be benefited by education, treatment, or rehabilitation. The probation department shall also determine which education, treatment, or rehabilitative plan would benefit the defendant. The probation department shall report its findings and recommendations to the court. If the recommendation includes referral to a community program, the report shall contain a statement regarding the program’s willingness to accept the defendant and the manner in which the services they offer can assist the defendant in completing the diversion program successfully.

(b) No statement, or any information procured therefrom, made by the defendant to any probation officer, which is made during the course of any investigation conducted by the probation department pursuant to subdivision (a), and prior to the reporting of the probation department’s findings and recommendations to the court, shall be admissible in any action or proceeding brought subsequent to the investigation.

No statement, or any information procured therefrom, with respect to the specific offense with which the defendant is charged which is made to any probation officer subsequent to the granting of diversion, shall be admissible in any action or proceeding.

In the event that diversion is either denied or is subsequently revoked once it has been granted, neither the probation investigation nor statements or information divulged during that investigation shall be used in any pretrial sentencing procedures.


text:
The court shall hold a hearing and, after consideration of the probation department’s report, and any other relevant information, shall determine if the defendant consents to further proceedings under this chapter and waives his or her right to a speedy trial. If the court orders a defendant to be diverted, the court may make inquiry into the financial condition of the defendant, and upon a finding that the defendant is able, in whole or in part, to pay the reasonable cost of diversion, the court may order him or her to pay all or part of the expense. The reasonable cost of diversion shall not exceed the amount determined to be the actual average cost of diversion services.

If the court does not deem the defendant to be a person who would be benefited by diversion or if the defendant does not consent to participate, the proceedings shall continue as in any other case.

At the time that a defendant’s case is diverted, any bail bond or undertaking, or deposit in lieu thereof, on file by or on behalf of the defendant shall be exonerated, and the court shall enter an order so directing.

The period during which the further criminal proceedings against the defendant may be diverted shall be for the length of time required to complete and verify the diversion program but in no case shall it exceed two years.


text: If it appears to the probation department that the divertee is performing unsatisfactorily in the assigned program, or that the divertee is not benefiting from education, treatment, or rehabilitation, or that the divertee is convicted of a misdemeanor in which force or violence was used, or if the divertee is convicted of a felony, after notice to the divertee, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the divertee is not performing satisfactorily in the assigned program, or that the divertee has been convicted of a crime as indicated above, the criminal case shall be referred back to the court for resumption of the criminal proceedings. If the divertee has performed satisfactorily during the period of diversion, the criminal charges shall be dismissed.


text:
(a) Any record filed with the Department of Justice shall indicate the disposition in those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for that offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee’s consent, be used in any way that would result in the denial of any employment, benefit, license, or certificate.

(b) The divertee shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

history: (History: Amended by Stats. 1996, Ch. 743, Sec. 5. Effective January 1, 1997.)


text:
(a) This chapter shall apply to a case before a court on an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (o) to a defendant who is eligible based on the criteria set forth in this chapter.

(b) A defendant charged with a misdemeanor is eligible for diversion if both of the following apply:

(1) The defendant was, or currently is, a member of the United States military.

(2) (A) The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of their military service.

(B) The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.

(c) A defendant charged with a felony offense not set forth in subdivision (o) is eligible if both of the following apply:

(1) The defendant was, or currently is, a member of the United States military.

(2) (A) The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or a mental health problem as a result of their military service, and the defendant’s condition was a significant factor in the commission of the charged offense.

(B) The court shall find that the defendant’s condition was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

(C) A court may consider any relevant and credible evidence, including, but not limited to, a police report, preliminary hearing transcript, witness statement, statement by the defendant’s mental health treatment provider, medical record, or record or report by qualified medical expert, that the defendant displayed symptoms consistent with the condition at or near the time of the offense.

(D) The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.

(d) If the court determines that a defendant charged with an applicable offense under this chapter is a person described in subdivision (b) or (c), the court, with the consent of the defendant and a waiver of the defendant’s speedy trial right, may place the defendant in a pretrial diversion program as defined in subdivision (k).

(e) If it appears to the court that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from the treatment and services provided under the diversion program, 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 is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from diversion, the court may end the diversion and order resumption of the criminal proceedings. If the defendant has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed.

(f) If a referral is made to the county mental health authority as part of the pretrial diversion program, the county shall provide mental health treatment services only to the extent that resources are available for that purpose as described in paragraph (5) of subdivision (b) of Section 5600.3 of the Welfare and Institutions Code. If mental health treatment services are ordered by the court, the county mental health agency shall coordinate appropriate referral of the defendant to the county veterans service officer as described in paragraph (5) of subdivision (b) of Section 5600.3 of the Welfare and Institutions Code. The county mental health agency is not responsible for providing services outside its traditional scope of services. An order shall be made referring a defendant to a county mental health agency only if that agency has agreed to accept responsibility for all of the following:

(1) The treatment of the defendant.

(2) The coordination of appropriate referral to a county veterans service officer.

(3) The filing of reports pursuant to subdivision (j).

(g) When determining the requirements of a pretrial diversion program pursuant to this chapter, the court shall assess whether the defendant should be ordered to participate in a federal or community-based treatment service program with a demonstrated history of specializing in the treatment of mental health problems, including substance abuse, post-traumatic stress disorder, traumatic brain injury, military sexual trauma, and other related mental health problems.

(h) The court, in making an order pursuant to this section to commit a defendant to an established treatment program, shall give preference to a treatment program that has a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service, including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs.

(i) The court and the assigned treatment program may collaborate with the Department of Veterans Affairs and the United States Department of Veterans Affairs to maximize benefits and services provided to a veteran.

(j) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months.

(k) A record filed with the Department of Justice shall indicate the disposition of those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The defendant may indicate in response to a question concerning their prior criminal record that they were not arrested or diverted for the offense, except as specified in subdivision (l). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the defendant’s consent, be used in a way that could result in the denial of any employment, benefit, license, or certificate.

(l) The defendant shall be advised that, regardless of their successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (k), this section does not relieve them of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer as defined in Section 830.

(m) (1) As used in this chapter, “pretrial diversion” means the procedure of postponing prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication.

(2) A pretrial diversion program shall utilize existing resources available to current or former members of the United States military to address and treat those suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service.

(n) (1) Notwithstanding any other law, including Section 23640 of the Vehicle Code, an offense for which a defendant may be placed in a pretrial diversion program in accordance with this section includes a misdemeanor violation of Section 23152 or 23153 of the Vehicle Code, however, this section does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.

(2) A defendant shall not be placed in a pretrial diversion program in accordance with this section for any offense related to driving under the influence other than those identified in paragraph (1).

(o) A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:

(1) Murder or voluntary manslaughter.

(2) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.

(3) Rape.

(4) Lewd or lascivious act on a child under 14 years of age.

(5) Assault with intent to commit rape, sodomy, or oral copulation in violation of Section 220.

(6) Commission of rape or sexual penetration in concert with another person in violation of Section 264.1.

(7) Continuous sexual abuse of a child in violation of Section 288.5.

(8) A violation of subdivision (b) or (c) of Section 11418.

(p) (1) The prosecution may request an order from the court that the defendant be prohibited from controlling, owning, purchasing, possessing, or receiving a firearm until they successfully complete diversion because they are a danger to themselves or others pursuant to subdivision (i) of Section 8103 of the Welfare and Institutions Code.

(2) The prosecution shall bear the burden of proving, by clear and convincing evidence, both of the following are true:

(A) The defendant poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm.

(B) The prohibition is necessary to prevent personal injury to the defendant or another person because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant.

(3) (A) If the court finds that the prosecution has not met that burden, the court shall not order that the person is prohibited from controlling, owning, purchasing, possessing, or receiving a firearm.

(B) If the court finds that the prosecution has met the burden, the court shall order that the person is prohibited, and shall inform the person that they are prohibited, from controlling, owning, purchasing, possessing, or receiving a firearm until they successfully complete diversion because they are a danger to themselves or others.

(4) An order imposed pursuant to this subdivision shall be in effect until the defendant has successfully completed diversion or until their firearm rights are restored pursuant to paragraph (4) of subdivision (g) of Section 8103 of the Welfare and Institutions Code.

history: (History: Amended by Stats. 2024, Ch. 924, Sec. 1. (SB 1025) Effective January 1, 2025.)

chapter: 2.9C. Military Diversion Program

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.9C. Military Diversion Program


text:
(a) The city or county prosecuting attorney or county probation department may create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorney’s office or the county probation department.

(b) Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.

(c) If a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorney’s office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the probation department or prosecuting attorney shall consider, but is not limited to, all of the following factors:

(1) Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the 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 deferred entry of judgment program.

(4) If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.

(5) Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.

(d) On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:

(1) The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.

(2) A statement of the penalty for the offense or offenses with which that person has been charged.

(e) The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:

(1) Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.

(2) Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.

(f) For the purposes of this section, “repeat theft offenses” means being cited or convicted for misdemeanor or felony theft from a store or from a vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.

history: (History: Amended by Stats. 2023, Ch. 131, Sec. 154. (AB 1754) Effective January 1, 2024. Repealed as of January 1, 2031, pursuant to Section 1001.82.)

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.9D. Theft and Repeat Theft Crimes Diversion or Deferred Entry of Judgment Program


text: This chapter shall remain in effect only until January 1, 2031, and as of that date is repealed.

history: (History: Amended by Stats. 2024, Ch. 168, Sec. 7. (AB 2943) Effective January 1, 2025. Repealed as of January 1, 2031, by its own provisions. Note: Repeal affects Chapter 2.9D, commencing with Section 1001.81.)

chapter: 2.9D. Theft and Repeat Theft Crimes Diversion or Deferred Entry of Judgment Program


text:
(a) The presiding judge of the superior court, or a judge designated by the presiding judge, in consultation with the presiding juvenile court judge and criminal court judges, and together with the prosecuting entity and the public defender or the contracted criminal defense office that provides the services of a public defender, may agree in writing to establish and conduct a pretrial diversion program for primary caregivers, pursuant to the provisions of this chapter, wherein criminal proceedings are suspended without a plea of guilty for a period of not less than 6 months and not more than 24 months. If the defendant is also participating in juvenile court proceedings, the juvenile and criminal courts shall not duplicate efforts.

(b) The program described in this section may include, but not be limited to, all of the following components:

(1) Parenting classes.

(2) Family and individual counseling.

(3) Mental health screening, education, and treatment.

(4) Family case management services.

(5) Drug and alcohol treatment.

(6) Domestic violence education and prevention.

(7) Physical and sexual abuse counseling.

(8) Anger management.

(9) Vocational and educational services.

(10) Job training and placement.

(11) Affordable and safe housing assistance.

(12) Financial literacy courses.

(c) The defendant may be referred to supportive services and classes in already existing diversion programs and county outpatient services. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant and the dependent child or children, and the interests of the community. The programming may be procured using public or private funds. A referral may be made to a county agency, existing collaborative court, or assisted outpatient treatment or services, if the entity agrees to provide the required programming.

(d) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the following requirements:

(1) The defendant is a custodial parent or legal guardian of a minor child under 18 years of age, presently resides in the same household as that child, presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant’s absence in the child’s life would be detrimental to the child.

(2) The defendant has been advised of and waived the right to a speedy trial and a speedy preliminary hearing.

(3) The defendant has been informed of and agrees to comply with the requirements of the program.

(4) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, or to the minor child in their custody, if allowed to remain in the community. The court may consider the positions of the prosecuting entity and defense counsel, the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant, and any other factors that the court deems appropriate.

(5) The defendant is not being placed into a diversion program, pursuant to this section, for any serious felony as described in Section 1192.7 or 1192.8 or violent felony as described in subdivision (c) of Section 667.5.

(6) The defendant is not being placed into a diversion program pursuant to this section for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.

(e) The provider of the pretrial diversion services in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in the programming.

(f) (1) If it appears to the prosecuting attorney, the court, pretrial services, or the probation department that the defendant is performing unsatisfactorily in the assigned program, or if the defendant is, subsequent to entering the program, convicted of a felony or any offense that reflects a propensity for violence, the prosecuting attorney or the probation department may make a motion to reinstate criminal proceedings. The court may also reinstate criminal proceedings on its own motion.

(2) After notice to the defendant, the court shall hold a hearing to determine whether to reinstate criminal proceedings.

(3) If the court finds that the defendant is not performing satisfactorily in the assigned program, or the court finds that the defendant has been convicted of a crime as indicated in paragraph (1), the court may end the diversion program and order the resumption of criminal proceedings.

(g) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, and has avoided significant new violations of law. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivision (i). The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that they were not arrested or diverted for the offense, except as specified in subdivision (i).

(h) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in 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.

(i) The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:

(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (h), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

history: (History: Added by Stats. 2019, Ch. 593, Sec. 1. (SB 394) Effective January 1, 2020.)

chapter: 2.9E. Primary Caregiver Diversion

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.9E. Primary Caregiver Diversion


text:
(a) The Law Enforcement Assisted Diversion (LEAD) pilot program is hereby established. The purpose of the LEAD program is to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration.

(b) LEAD pilot programs shall be consistent with the following principles, implemented to address and reflect the priorities of the community in which the program exists:

(1) Providing intensive case management services and an individually tailored intervention plan that acts as a blueprint for assisting LEAD participants.

(2) Prioritizing temporary and permanent housing that includes individualized supportive services, without preconditions of drug or alcohol treatment or abstinence from drugs or alcohol.

(3) Employing human and social service resources in coordination with law enforcement in a manner that improves individual outcomes and community safety, and promotes community wellness.

(4) Participation in LEAD services shall be voluntary throughout the duration of the program and shall not require abstinence from drug or alcohol use as a condition of continued participation.

history: (History: Added by Stats. 2016, Ch. 33, Sec. 17. (SB 843) Effective June 27, 2016.)

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.92. Law Enforcement Assisted Diversion (LEAD) Pilot Program


text:
(a) The LEAD program shall be administered by the Board of State and Community Corrections.

(b) The board shall award grants, on a competitive basis, to up to three jurisdictions as authorized by this chapter. The board shall establish minimum standards, funding schedules, and procedures for awarding grants, which shall take into consideration, but not be limited to, all of the following:

(1) Information from the applicant demonstrating a clear understanding of the program’s purpose and the applicant’s willingness and ability to implement the LEAD program as described in this chapter.

(2) Key local partners who would be committed to, and involved in, the development and successful implementation of a LEAD program, including, but not limited to, balanced representation from law enforcement agencies, prosecutorial agencies, public defenders and defense counsel, public health and social services agencies, case management service providers, and any other entities identified by the applicant as integral to the successful implementation of a LEAD program in the jurisdiction.

(3) The jurisdiction’s capacity and commitment to coordinate social services, law enforcement efforts, and justice system decisionmaking processes, and to work to ensure that the discretionary decisions made by each participant in the administration of the program operates in a manner consistent with the purposes of this chapter.

(c) Successful grant applicants shall collect and maintain data pertaining to the effectiveness of the program as indicated by the board in the request for proposals.

chapter: 2.92. Law Enforcement Assisted Diversion (LEAD) Pilot Program


text:
(a) LEAD programs funded pursuant to this chapter shall consist of a strategy of effective intervention for eligible participants consistent with the following gateways to services:

(1) Prebooking referral. As an alternative to arrest, a law enforcement officer may take or refer a person for whom the officer has probable cause for arrest for any of the offenses in subdivision (b) to a case manager to be screened for immediate crisis services and to schedule a complete assessment intake interview. Participation in LEAD shall be voluntary, and the person may decline to participate in the program at any time. Criminal charges based on the conduct for which a person is diverted to LEAD shall not be filed, provided that the person finishes the complete assessment intake interview within a period set by the local jurisdictional partners, but not to exceed 30 days after the referral.

(2) Social contact referral. A law enforcement officer may refer an individual to LEAD whom he or she believes is at high risk of arrest in the future for any of the crimes specified in subdivision (b), provided that the individual meets the criteria specified in this paragraph and expresses interest in voluntarily participating in the program. LEAD may accept these referrals if the program has capacity after responding to prebooking diversion referrals described in paragraph (1). All social contact referrals to LEAD shall meet the following criteria:

(A) Verification by law enforcement that the individual has had prior involvement with low-level drug activity or prostitution. Verification shall consist of any of the following:

(i) Criminal history records, including, but not limited to, prior police reports, arrests, jail bookings, criminal charges, or convictions indicating that he or she was engaged in low-level drug or prostitution activity.

(ii) Law enforcement has directly observed the individual’s low-level drug or prostitution activity on prior occasions.

(iii) Law enforcement has a reliable basis of information to believe that the individual is engaged in low-level drug or prostitution activity, including, but not limited to, information provided by another first responder, a professional, or a credible community member.

(B) The individual’s prior involvement with low-level drug or prostitution activity occurred within the LEAD pilot program area.

(C) The individual’s prior involvement with low-level drug or prostitution activity occurred within 24 months of the date of referral.

(D) The individual does not have a pending case in drug court or mental health court.

(E) The individual is not prohibited, by means of an existing no-contact order, temporary restraining order, or antiharassment order, from making contact with a current LEAD participant.

(b) The following offenses are eligible for either prebooking diversion, social contact referral, or both:

(1) Possession for sale or transfer of a controlled substance or other prohibited substance where the circumstances indicate that the sale or transfer is intended to provide a subsistence living or to allow the person to obtain or afford drugs for his or her own consumption.

(2) Sale or transfer of a controlled substance or other prohibited substance where the circumstances indicate that the sale or transfer is intended to provide a subsistence living or to allow the person to obtain or afford drugs for his or her own consumption.

(3) Possession of a controlled substance or other prohibited substance.

(4) Being under the influence of a controlled substance or other prohibited substance.

(5) Being under the influence of alcohol and a controlled substance or other prohibited substance.

(6) Prostitution pursuant to subdivision (b) of Section 647.

history: (History: Amended by Stats. 2017, Ch. 561, Sec. 186. (AB 1516) Effective January 1, 2018.)


text:
(a) Services provided pursuant to this chapter may include, but are not limited to, case management, housing, medical care, mental health care, treatment for alcohol or substance use disorders, nutritional counseling and treatment, psychological counseling, employment, employment training and education, civil legal services, and system navigation. Grant funding may be used to support any of the following:

(1) Project management and community engagement.

(2) Temporary services and treatment necessary to stabilize a participant’s condition, including necessary housing.

(3) Outreach and direct service costs for services described in this section.

(4) Civil legal services for LEAD participants.

(5) Dedicated prosecutorial resources, including for coordinating any nondiverted criminal cases of LEAD participants.

(6) Dedicated law enforcement resources, including for overtime required for participation in operational meetings and training.

(7) Training and technical assistance from experts in the implementation of LEAD in other jurisdictions.

(8) Collecting and maintaining the data necessary for program evaluation.

(b) (1) The board shall contract with a nonprofit research entity, university, or college to evaluate the effectiveness of the LEAD program. The evaluation design shall include measures to assess the cost-benefit outcomes of LEAD programs compared to booking and prosecution, and may include evaluation elements such as comparing outcomes for LEAD participants to similarly situated offenders who are arrested and booked, the number of jail bookings, total number of jail days, the prison incarceration rate, subsequent felony and misdemeanor arrests or convictions, and costs to the criminal justice and court systems. Savings will be compared to costs of LEAD participation. By January 1, 2020, a report of the findings shall be submitted to the Governor and the Legislature pursuant to Section 9795 of the Government Code.

(2) The requirement for submitting a report pursuant to this subdivision is inoperative on January 1, 2024, pursuant to Section 10231.5 of the Government Code.

(c) The board may contract with experts in the implementation of LEAD in other jurisdictions for the purpose of providing technical assistance to participating jurisdictions.

(d) The sum of fifteen million dollars ($15,000,000) is hereby appropriated from the General Fund for the LEAD pilot program authorized in this chapter. The board may spend up to five hundred fifty thousand dollars ($550,000) of the amount appropriated in this subdivision for the contracts authorized in subdivisions (b) and (c).


text:
(a) For all persons charged with a felony or misdemeanor whose case is diverted by the court pursuant to this title, the court shall impose on the defendant a diversion restitution fee in addition to any other administrative fee provided or imposed under the law. This fee shall not be imposed upon persons whose case is diverted by the court pursuant to Chapter 2.8 (commencing with Section 1001.20).

(b) The diversion restitution fee imposed pursuant to this section shall be set at the discretion of the court and shall be commensurate with the seriousness of the offense, but shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000).

(c) The diversion restitution fee shall be ordered regardless of the defendant’s present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fee. When the waiver is granted, the court shall state on the record all reasons supporting the waiver. Except as provided in this subdivision, the court shall impose the separate and additional diversion restitution fee required by this section.

(d) In setting the amount of the diversion restitution fee in excess of the one hundred dollar ($100) minimum, the court shall consider any relevant factors, including, but not limited to, the defendant’s ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which any other person suffered any losses as a result of the crime. Those losses may include pecuniary losses to the victim or the victim’s dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant’s ability to pay may include the defendant’s future earning capacity. A defendant shall bear the burden of demonstrating the lack of the defendant’s ability to pay. Express findings by the court as to the factors bearing on the amount of the fee shall not be required. A separate hearing for the diversion restitution fee shall not be required.

(e) The court shall not limit the ability of the state to enforce the fee imposed by this section in the manner of a judgment in a civil action. The court shall not modify the amount of this fee except to correct an error in the setting of the amount of the fee imposed.

(f) The fee imposed pursuant to this section shall be immediately deposited in the Restitution Fund for use pursuant to Section 13967 of the Government Code.

(g) As used in this section, “diversion” also means deferred entry of judgment pursuant to Chapter 2.5 (commencing with Section 1000).

(h) This section shall become operative on January 1, 2022.

history: (History: Repealed (in Sec. 17) and added by Stats. 2021, Ch. 257, Sec. 18. (AB 177) Effective September 23, 2021. Operative January 1, 2022, by its own provisions.)

chapter: 2.95. Diversion Restitution Fee

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.95. Diversion Restitution Fee


text:
(a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.

(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.

(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.

(d) If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.

(e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:

(1) Any offense for which a person, if convicted, would be required to register pursuant to Section 290.

(2) Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.

(3) A violation of Section 646.9.

history: (History: Amended by Stats. 2022, Ch. 58, Sec. 6. (AB 200) Effective June 30, 2022.)

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 2.96. Court Initiated Misdemeanor Diversion


text:
A defendant who is diverted pursuant to this chapter shall be required to complete all of the following in order to have their action dismissed:

(a) Complete all conditions ordered by the court.

(b) Make full restitution. However, a defendant’s inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.

(c) Comply with a court-ordered protective order, stay-away order, or order prohibiting firearm possession, if applicable.

history: (History: Added by Stats. 2020, Ch. 334, Sec. 1. (AB 3234) Effective January 1, 2021.)

chapter: 2.96. Court Initiated Misdemeanor Diversion


text:
(a) Upon successful completion of the terms, conditions, or programs ordered by the court pursuant to Section 1001.95, the arrest upon which diversion was imposed shall be deemed to have never occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of the terms, conditions, or programs ordered by the court shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(b) The defendant shall be advised that, regardless of their successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (a), this section does not relieve them of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.


citation: PEN § 1002

text: The only pleading on the part of the defendant is either a demurrer or a plea.

history: (History: Enacted 1872.)

chapter: 3. Demurrer and Amendment

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 3. Demurrer and Amendment


citation: PEN § 1003

text: Both the demurrer and plea must be put in, in open Court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.


citation: PEN § 1004

text:
The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:

(a) If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if any information or complaint that the court has no jurisdiction of the offense charged therein.

(b) That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information.

(c) That more than one offense is charged, except as provided in Section 954.

(d) That the facts stated do not constitute a public offense.

(e) That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

(f) That the statutory provision alleged in the accusatory pleading is constitutionally invalid.

history: (History: Amended by Stats. 2023, Ch. 311, Sec. 7. (SB 883) Effective January 1, 2024.)


citation: PEN § 1005

text: The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the accusatory pleading or it must be disregarded.

history: (History: Amended by Stats. 1951, Ch. 1674.)


citation: PEN § 1006

text: Upon the demurrer being filed, the argument upon the objections presented thereby must be heard immediately, unless for exceptional cause shown, the court shall grant a continuance. Such continuance shall be for no longer time than the ends of justice require, and the court shall enter in its minutes the facts requiring it.

history: (History: Amended by Stats. 1927, Ch. 609.)


citation: PEN § 1007

text: Upon considering the demurrer, the court must make an order either overruling or sustaining it. If the demurrer to an indictment or information is overruled, the court must permit the defendant, at the defendant’s election, to plead, which the defendant must do forthwith, unless the court extends the time. If the demurrer is sustained, the court must, if the defect can be remedied by amendment, permit the indictment or information to be amended, either forthwith or within such time, not exceeding 10 days, as it may fix, or, if the defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing of a new information or the submission of the case to the same or another grand jury. If the demurrer to a complaint is sustained, the court must, if the defect can be remedied, permit the filing of an amended complaint within such time not exceeding 10 days as it may fix. The orders made under this section shall be entered in the docket or minutes of the court.

history: (History: Amended by Stats. 1998, Ch. 931, Sec. 382. Effective September 28, 1998.)


citation: PEN § 1008

text: If the demurrer is sustained, and no amendment of the accusatory pleading is permitted, or, in case an amendment is permitted, no amendment is made or amended pleading is filed within the time fixed therefor, the action shall be dismissed, and, except as provided in Section 1010, the court must order, if the defendant is in custody, that he be discharged or if he has been admitted to bail, that his bail be exonerated, or, if money or other property has been deposited instead of bail for his appearance, that such money or other property be refunded to him or to the person or persons found by the court to have deposited such money or other property on his behalf.


citation: PEN § 1009

text: An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint.

history: (History: Amended by Stats. 1998, Ch. 931, Sec. 383. Effective September 28, 1998.)


citation: PEN § 1010

text: When an indictment or information is dismissed after the sustaining of a demurrer, or at any other stage of the proceedings because of any defect or insufficiency of the indictment or information, if the court directs that the case be resubmitted to the same or another grand jury or that a new information be filed, the defendant shall not be discharged from custody, nor the defendant’s bail exonerated nor money or other property deposited instead of bail on the defendant’s behalf refunded, but the same proceedings must be had on such direction as are prescribed in Sections 997 and 998.

history: (History: Amended by Stats. 1998, Ch. 931, Sec. 384. Effective September 28, 1998.)


citation: PEN § 1012

text: When any of the objections mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court and the objection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment.


citation: PEN § 1016

text:
There are six kinds of pleas to an indictment or an information, or to a complaint charging a misdemeanor or infraction:

1. Guilty.

2. Not guilty.

3. Nolo contendere, subject to the approval of the court. The court shall ascertain whether the defendant completely understands that a plea of nolo contendere shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.

4. A former judgment of conviction or acquittal of the offense charged.

5. Once in jeopardy.

6. Not guilty by reason of insanity.

A defendant who does not plead guilty may enter one or more of the other pleas. A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged; provided, that the court may for good cause shown allow a change of plea at any time before the commencement of the trial. A defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of the offense charged.

history: (History: Amended by Stats. 1998, Ch. 931, Sec. 385. Effective September 28, 1998.)

chapter: 4. Plea

path: 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL > 4. Plea