Chapter 2.8 - Diversion of Defendants With Cognitive Developmental Disabilities

California Penal Code — §§ 1001.20-1001.34

Sections (17)

Added by Stats. 1982, Ch. 42, Sec. 2. Effective February 17, 1982.

(a)This chapter shall not apply to any pretrial diversion or posttrial programs for the treatment of problem drinking or alcoholism utilized for persons convicted of one or more offenses under Section 23152 or 23153 or former Section 23102 of the Vehicle Code or to pretrial diversion programs established pursuant to Chapter 2.5 (commencing with Section 1000) of this title nor shall this chapter be deemed to authorize any pretrial diversion or posttrial programs for persons alleged to have committed violation of Section 23152 or 23153 of the Vehicle Code.

(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.

§ 1001.3

Added by Stats. 1982, Ch. 42, Sec. 2. Effective February 17, 1982.

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

§ 1001.20

Repealed (in Sec. 14) and added by Stats. 2020, Ch. 11, Sec. 15. (AB 79) Effective June 29, 2020. Operative January 1, 2021, by its own provisions.

(a)“Developmental disability” means a disability as defined in subdivision (a) of Section 4512 of the Welfare and Institutions Code and for which a regional center finds eligibility for services under the Lanterman Developmental Disabilities Services Act.

(b)“Diversion-related treatment and habilitation” means, but is not limited to, specialized services or special adaptations of generic services, directed toward the alleviation of developmental disability or toward social, personal, physical, or economic habilitation or rehabilitation of an individual with a developmental disability, and includes, but is not limited to, diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, physical,

occupational, and speech therapy, training, education, sheltered employment, mental health services, recreation, counseling of the individual with this disability and of the individual’s family, protective and other social and sociolegal services, information and referral services, follow-along services, and transportation services necessary to ensure delivery of services to persons with developmental disabilities.

(c)“Regional center” means a regional center for the developmentally disabled established under the Lanterman Developmental Disabilities Services Act that is organized as a private nonprofit community agency to plan, purchase, and coordinate the delivery of services that cannot be provided by state agencies to developmentally disabled persons residing in a particular geographic catchment area, and that is licensed and funded by the State Department of Developmental Services.

(d)“Director of a regional center” means the executive director of a regional center for the developmentally disabled individual or their designee.

(e)“Agency” means the prosecutor, the probation department, and the regional center involved in a particular defendant’s case.

(f)“Dual agency diversion” means a treatment and habilitation program developed with court approval by the regional center, administered jointly by the regional center and by the probation department, that is 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, and that includes, but is not limited to, treatment specifically addressed to the criminal offense charged, for a specified period of time as prescribed in Section 1001.28.

(g)“Single agency diversion” means a treatment and habilitation program developed with court approval by the regional center, administered solely by the regional center without involvement by the probation department, that is 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, and that includes, but is not limited to, treatment specifically addressed to the criminal offense charged, for a specified period of time as prescribed in Section 1001.28.

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

§ 1001.21

Repealed (in Sec. 16) and added by Stats. 2020, Ch. 11, Sec. 17. (AB 79) Effective June 29, 2020. Operative January 1, 2021, by its own provisions.

(a)This chapter shall apply whenever a case is before any court upon an accusatory pleading at any stage of the criminal proceedings, for any person who has been evaluated by a regional center and who is determined to be a person with a developmental disability by the regional center, and who therefore is eligible for its services.

(b)This chapter applies to any offense that is charged as a misdemeanor or felony offense, except that a defendant may not be placed into a diversion program, pursuant to this section, for any of 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.

(c)Diversion shall not be

ordered when the defendant previously has been diverted under this chapter within two years prior to the present criminal proceedings.

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

§ 1001.22

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.

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.

§ 1001.23

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.

(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.

§ 1001.24

Added by Stats. 1980, Ch. 1253, Sec. 1.

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.

§ 1001.25

Added by Stats. 1980, Ch. 1253, Sec. 1.

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.

§ 1001.26

Added by Stats. 1980, Ch. 1253, Sec. 1.

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.

§ 1001.27

Added by Stats. 1980, Ch. 1253, Sec. 1.

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.

§ 1001.28

Added by Stats. 1980, Ch. 1253, Sec. 1.

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.

§ 1001.29

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.

(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.

§ 1001.30

Added by Stats. 1980, Ch. 1253, Sec. 1.

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.

§ 1001.31

Added by Stats. 1980, Ch. 1253, Sec. 1.

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

§ 1001.32

Added by Stats. 1980, Ch. 1253, Sec. 1.

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

§ 1001.33

Amended by Stats. 1996, Ch. 743, Sec. 3. Effective January 1, 1997.

(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.

§ 1001.34

Added by Stats. 1980, Ch. 1253, Sec. 1.

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.