1001.98.
(a) (1) On an accusatory pleading alleging a felony theft offense, including the theft of retail property or merchandise, the court may, upon the request of the defendant or the prosecutor, or upon the court’s own motion, 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 requirements specified in subdivision (b).(2) A defendant may not be offered diversion pursuant to this section for any of the following offenses:
(A) A serious felony described in subdivision (c) of Section 1192.7.
(B) A violent felony described in subdivision (c) of Section 667.5.
(C) A violation of Section 368.
(D) Embezzlement, as described in Chapter 6 (commencing with Sectiton 503) of Title 13 of Part 1.
(E) An offense for which the value of the stolen property or merchandise exceeds $25,000.
(3) A defendant may not be offered diversion if the defendant has a prior conviction for a serious felony described in subdivision (c) of Section 1192.7, or for a violent felony described in subdivision (c) of Section 667.5(c), where the conviction occurred within five years of the date of commission of the divertible offense.
(4) As used in this section, “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 participate in the appropriate diversion program.
(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:
(1) The court makes a prima facie determination that at least one of the factors listed below substantially contributed to the commission of the charged offense:
(A) The defendant lives 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, substance use disorder (SUD), but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense.
(B) The defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence (Adverse Childhood Experiences – ACEs).
(C) The defendant suffers from poverty by lacking enough resources to provide the necessities of life, such as food, clean water, shelter, and clothing.
(D) Any other condition affecting the defendant’s motivation for committing the crime that the court finds substantially mitigating.
(2) The defendant shall consent to diversion and waive all rights to a speedy trial, unless the defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 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 shall agree to comply with treatment as a condition of diversion.
(4) The court shall be satisfied that the defendant will not pose a danger to public safety 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 violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(c) (1) If the court finds the defendant is suitable for diversion, the court may offer the defendant the opportunity to participate in an appropriate diversion program, as determined by the court, in lieu of further criminal proceedings. Appropriate programs include ones that are utilized in the criminal justice system in that county. The court shall monitor the defendant’s progress with regular hearings and program reports every 30 to 60 days.
(2) An appropriate diversion program may include, but is not limited to, one or more of the following:
(A) A drug court or related substance use disorder treatment program.
(B) A mental health court or mental health-related treatment program.
(C) A veterans court program.
(D) A restorative justice-based program.
(E) A job training program.
(F) Other appropriate community-based program.
(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 a victim as a result of the diverted offense and, if owed, order it payable to the victim. The restitution order shall be enforceable as a civil judgment pursuant to subdivision (i) of Section 1202.4 and Section 1214, including after diversion is completed or terminated. The court shall make payment of restitution a condition 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.
(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, has avoided significant new violations of law unrelated to the factors contributing to the defendant’s offense, and has a plan in place to help address the factors contributing to the defendant’s offense. If the court dismisses the charge, 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 (g) and (j). 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).
(f) A record pertaining to an arrest resulting in successful completion of diversion, or a 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) If any of the following circumstances exist, 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 or program 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) The court determines either of the following circumstances exist:
(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 when this finding is made.
(h) (1) The diversion opportunities in this section shall only be made available for the defendant once in any 12-month period, as measured from the date of the earliest charged offense of this section.
(2) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.
(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 (f), this section does not relieve the defendant 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.
(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.
(j) Any factors specified in subdivision (b) that the court found to contribute to the commission of the crime, any progress reports concerning the defendant’s treatment, or any other records related to the factors 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.
(k) As used in this section, the following definitions shall apply:
(1) “Retail property or merchandise” means an article, product, commodity, item, or component intended to be sold in retail commerce.
(2) “Value” means the retail value of an item as advertised by the affected retail establishment, including applicable taxes.