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SB-394 Criminal procedure: diversion for primary caregivers of minor children.(2019-2020)

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Date Published: 06/06/2019 09:00 PM

Revised  June 26, 2019
Amended  IN  Assembly  June 06, 2019
Amended  IN  Senate  April 03, 2019


Senate Bill
No. 394

Introduced by Senator Skinner
(Coauthor: Assembly Member Wicks)

February 20, 2019

An act to add Chapter 2.9E (commencing with Section 1001.83) to Title 6 of Part 2 of the Penal Code, relating to criminal procedure.


SB 394, as amended, Skinner. Criminal procedure: diversion for primary caregivers of minor children.
Existing law allows individuals charged with a specified crime to qualify for a pretrial diversion program based upon various circumstances and qualifications, including mental health disorders, military service, or drug addiction. Existing law generally requires, if the defendant performs satisfactorily in one of these diversion programs, that the court dismiss the defendant’s criminal charges and seal the record of arrest, as specified.
This bill would create a pretrial diversion program for defendants who are primary caregivers of a minor child, as specified, and who are charged with a misdemeanor or a nonserious, nonviolent felony. The bill would require the defendant to participate in classes relating to subjects including that may include parenting, anger management, and financial literacy, and to receive services relating to housing, employment, and drug, alcohol, and mental health treatment, among others.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


 Chapter 2.9E (commencing with Section 1001.83) is added to Title 6 of Part 2 of the Penal Code, to read:
CHAPTER  2.9E. Primary Caregiver Diversion

 (a) The presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney 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 designated defendants.
(b) The program described in this section shall 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) 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 the age of 18 years, 18 years of age, presently resides in the same household as that child, and and, either alone or with the assistance of other household members, presently provides a significant portion of the necessary care or financial support of that minor child.
(2) The defendant has been advised of and waived the right to a speedy trial, a speedy preliminary hearing, and to a trial by jury.
(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. In making this determination, the court may consider the recency of any criminal history that would indicate a risk to public safety. The court may consider the opinions of the district attorney and the defense, and may consider 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 dependant dependent minor’s exposure to or involvement in criminal activity, the current charged offense, 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.
(d) (1) If it appears to the prosecuting attorney, the court, 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, the court on its own, or the probation department may make a motion to reinstate criminal proceedings.
(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 shall schedule the matter for further proceedings as otherwise provided in this code.
(e) 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 (g). 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 (g).
(f) 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.
(g) 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 (f), 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.


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