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CALIFORNIA LEGISLATURE— 2025–2026 REGULAR SESSION

93

Introduced by Assembly Member Elhawary

(Coauthor: Assembly Member McKinnor)

February 21, 2025

An act to add Chapter 2.97 (commencing with Section 1001.98) to Title 6 of Part 2 of the Penal Code, relating to criminal procedure.

Vote: majority   Appropriation: no   Fiscal committee: yes   Local program: no

LEGISLATIVE COUNSEL’S DIGEST

Existing law authorizes a judge in the superior court in which a misdemeanor is being prosecuted to offer misdemeanor diversion to a defendant. Existing law, upon successful completion of the terms, conditions, or programs ordered by the court, makes the arrest upon which the diversion was imposed deemed to have never occurred, except as specified relating to application to be a peace officer.

This bill, the Safer Communities Through Opportunities Act, would authorize a court to exercise its discretion to grant pretrial diversion on a felony offense, subject to certain exceptions. The bill would authorize the court to consider information from, among others, the prosecutor and the defendant defense in determining whether or not to grant diversion and would prohibit a court from granting diversion unless it finds that the diversion plan mitigates any unreasonable risk of danger to public safety and that the defendant is likely to benefit from the services provided in the diversion plan. The bill would authorize a court to consider reinstating criminal proceedings in certain circumstances, such as the commission of a misdemeanor committed while the defendant is receiving pretrial diversion services that shows a propensity for violence, among others. The bill would require the court to dismiss the criminal allegations if it finds that the defendant has complied with the terms and conditions during the diversion period. The bill would require the court, if the court reduces the felony to a misdemeanor, to follow existing misdemeanor diversion proceedings.

The people of the State of California do enact as follows:

SECTION 1.

Chapter 2.97 (commencing with Section 1001.98) is added to Title 6 of Part 2 of the Penal Code, to read:

Chapter 2.97. Safer Communities Through Opportunities Act

1001.98.

(a) On an accusatory pleading alleging the commission of a felony offense described in subdivision (b), a defendant may move the court for diversion pursuant to this section at any time prior to the start of a trial. The court may, in its discretion, grant pretrial diversion to a defendant pursuant to this section if the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).

(b) (1) Except as provided in paragraph (2), this chapter applies to any felony offense punishable as follows:

(A) Pursuant to subdivision (h) of Section 1170.

(B) As a misdemeanor or by imprisonment in the state prison for 16 months, 2 years, or 3 years. Offenses that are a serious felony, as described in subdivision (c) of Section 1192.7, or a violent felony, as described in subdivision (c) of Section 667.5, are ineligible for diversion.

(2) This chapter does not apply to any of the following:

(A) An offense alleged to have caused great bodily injury or serious bodily injury.

(B) An offense alleged to have involved the personal use of a firearm in the commission of an offense, pursuant to Section 12022.5 or 12022.53.

(C) An offense punishable pursuant to Section 23550 of the Vehicle Code.

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

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

(F) A violation of Section 646.9.

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

(c) (1) In determining whether to grant diversion, the court may consider information provided by entities, including, but not limited to, defense counsel, the defense, the prosecution, probation or pretrial services, victims, family or close contacts of the defendant, and service providers. In determining whether diversion is appropriate, applicable considerations may include the factors described in Section 1016.7 and Rule Rules 4.421 and 4.423 of the California Rules of Court. The court may also consider the defendant’s age and health conditions. A history of having survived human trafficking, domestic violence, or sexual assault shall be given great weight as mitigating factors that indicate diversion is appropriate. The court shall consider the following as aggravating factors that indicate diversion is inappropriate:

(2) A defendant’s request for diversion pursuant to subdivision (a) may proceed on offers of proof, reliable hearsay, and arguments of counsel and shall proceed prior to any trial or plea of guilty or no contest. If a court, in its discretion, opts to conduct a hearing on whether to grant diversion, a defendant shall submit to the court and serve on the prosecution a proposed diversion plan.

(d) The court shall not grant diversion unless it finds that the diversion plan mitigates any unreasonable risk of danger to public safety and finds that the defendant is likely to benefit from the services provided in the diversion plan.

(e) A (1) The court may order the defendant to comply with a court-approved, individually tailored diversion plan that describes the terms, conditions, or programs programs, or services that the court finds appropriate for the strengths and needs of the defendant and based on the recommendations from the defendant, a social worker, a behavioral health worker, or health care professional. interests of the community. The court may consider the perspective of the prosecutor, pretrial services office, or probation department in assessing any recommendations. If the defendant has a history of having survived human trafficking, domestic violence, or sexual assault, the diversion plan and proposal may rely on information or recommendations from a sexual assault counselor, as described in Section 1035.2 of the Evidence Code, a human trafficking caseworker, as described in Section 1038.2 of the Evidence Code, or a domestic violence counselor as described in Section 1037.1 of the Evidence Code. The diversion plan ordered by the court shall include any conditions necessary to mitigate an unreasonable risk of danger to public safety. recommendations from entities, including, but not limited to, the defense, the prosecution, probation or pretrial services, victims, family or close contacts of the defendant, and service providers, including a social worker, behavioral worker, or health care professional.

(f) Upon a court granting diversion, any bail, bond or undertaking, or deposit in lieu thereof on behalf of the defendant shall be exonerated.

(g) A court may continue the criminal proceedings for a period not to exceed 24 months.

1001.981.

(a) A defendant who is diverted pursuant to this chapter, who would otherwise be required to make full restitution if they were not diverted, shall be required to make full restitution.

(b) 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) In determining that dismissal is warranted upon completion of the proposed diversion plan, the court shall consider unpaid restitution in their consideration of dismissal only if nonpayment was willful and not due solely to indigency or inability to pay. If diversion is completed, but the defendant has an outstanding restitution order balance, a case may be dismissed and the restitution payment shall be enforceable as if the order were a civil judgment pursuant to subdivision (i) of Section 1202.4.

1001.982.

(a) Any statement, information, or progress reports concerning the defendant’s diversion plan, including, but not limited to, health information, evaluations, clinical or treatment notes, or services provided, or any other records related to treatment that were provided for the purpose of facilitating, or as a result of participation in, or completion of, diversion pursuant to this chapter or for use in determining the defendant’s eligibility for diversion pursuant to this chapter shall 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.

(b) This section applies even if diversion is denied or subsequently revoked.

1001.983.

(a) The court may modify a diversion plan if it appears, following a hearing on the matter, that the defendant is not meeting the terms and conditions of the diversion program. The court may modify the diversion plan to provide for greater supervision by either the treatment agency or the probation department, or both. or additional terms, conditions, programs, or services. A hearing pursuant to this subdivision shall not be held until after notice has been given to the defendant. The hearing shall follow the evidentiary rules applicable to a probation violation hearing.

(b) A court may hold a hearing to determine whether the criminal proceeding should be reinstated if any of the following circumstances exist:

(1) The defendant is charged with a misdemeanor allegedly committed while the defendant is receiving pretrial diversion services that reflects the defendant’s propensity for violence.

(2) The defendant is charged with a felony allegedly committed while the defendant is receiving pretrial diversion services.

(3) Unsatisfactory performance in the diversion plan that causes the court to believe that no reasonably available additional terms, conditions, or services can mitigate unreasonable risks to public safety. If it appears to the court that the defendant is performing unsatisfactorily in the diversion plan. Unsatisfactory performance may be indicated by repeated or significant noncompliance with the diversion plan.

(d) A hearing to reinstitute criminal proceedings may be initiated by the court or the prosecutor, and may proceed only after notice to the defendant.

(e) A hearing to reinstitute criminal proceedings pursuant to paragraph (2) of subdivision (b) shall not proceed until probable cause has been established in the subsequent felony allegations.

1001.984.

(a) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the court shall dismiss the criminal allegations.

(b) 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.

(c) 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.

1001.985.

(a) This chapter shall be implemented only to the extent that it does not conflict with an initiative statute.

(b) If the court has reduced a felony to a misdemeanor pursuant to subdivision (b) of Section 17, the misdemeanor diversion provisions of Section 1001.95 shall be applicable.

(c) Nothing in this chapter is intended to conflict with Marsy’s Law or a victim’s right to participate in these proceedings.