Chapter 2.9. Diversion Of Misdemeanor Offenders of California Penal Code >> Title 6. >> Part 2. >> Chapter 2.9.
(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.
(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
(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parole has ever been revoked without thereafter being completed.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
(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
(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
(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
(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.
(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
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.
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
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.
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.
(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.