"u.s.a"california penal code

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[align=left]1001. It is the intent of the Legislature that neither this
chapter, Chapter 2.5 (commencing with Section 1000) of this title,
nor any other provision of law be construed to preempt other current
or future pretrial or precomplaint diversion programs. It is also
the intent of the Legislature that current or future posttrial
diversion programs not be preempted, except as provided in Section
13201 or 13352.5 of the Vehicle Code. Sections 1001.2 to 1001.11,
inclusive, of this chapter shall apply only to pretrial diversion
programs as defined in Section 1001.1.



1001.1. As used in Sections 1001.2 to 1001.11, inclusive, of this
chapter, pretrial diversion refers to the procedure of postponing
prosecution of an offense filed as a misdemeanor either temporarily
or permanently at any point in the judicial process from the point at
which the accused is charged until adjudication.




1001.2. (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. At no time shall a defendant be required to make an
admission of guilt as a prerequisite for placement in a pretrial
diversion program.


1001.4. A divertee is entitled to a hearing, as set forth by law,
before his or her pretrial diversion can be terminated for cause.



1001.5. No statement, or information procured therefrom, made by
the defendant in connection with the determination of his or her
eligibility for diversion, and no statement, or information procured
therefrom, made by the defendant, subsequent to the granting of
diversion or while participating in such program, and no information
contained in any report made with respect thereto, and no statement
or other information concerning the defendant's participation in such
program shall be admissible in any action or proceeding. However,
if a divertee is recommended for termination for cause, information
regarding his or her participation in such program may be used for
purposes of the termination proceedings.


1001.6. 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 so directing.


1001.7. If the divertee has performed satisfactorily during the
period of diversion, the criminal charges shall be dismissed at the
end of the period of diversion.



1001.8. Any record filed with the Department of Justice shall
indicate the disposition of those cases diverted pursuant to this
chapter.


1001.9. (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.[/align]

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AIDS PREVENTION PROGRAM IN DRUG ABUSE AND
PROSTITUTION CASES


1001.10. (a) The judge shall require any person described in
subdivision (b), as a condition of either placing the person on
probation or of permitting the person to participate in a drug
diversion program to agree to participate in an AIDS education
program. Testing for AIDS antibodies shall be offered but no person
described in subdivision (b) shall be required to be tested.
(b) This section shall apply to any person who has either been
placed on probation or granted diversion for, any of the following:
(1) A violation of subdivision (a) of Section 11350 of the Health
and Safety Code, subdivision (a) of Section 11377 of the Health and
Safety Code, Section 11550 of the Health and Safety Code, Section
4143 or 4149 of the Business and Professions Code, or of subdivision
(f) of Section 647 if the offense involves intravenous use of a
controlled substance.
(2) A violation of subdivision (a) or (b) of Section 647.



1001.11. (a) The health department in each county shall select an
agency, or agencies, in the county that shall provide AIDS prevention
education to those persons sentenced to probation or a drug
diversion program in accordance with Section 1001.10. The health
department shall endeavor to select an agency, or agencies, that
currently provide AIDS prevention education programs to substance
abusers or prostitutes. If no agency is currently providing this
education, the county agency responsible for substance abuse shall
develop an AIDS prevention education program either within the agency
or under contract with a community-based, nonprofit organization in
the county. The health department shall forward to the courts a list
of agencies selected for purposes of referral in accordance with
Section 1001.10. Reimbursement for the costs of implementing this
section shall be made out of moneys deposited with the county
treasurer in accordance with Section 1463.23.
(b) An AIDS prevention education program providing services
pursuant to subdivision (a) shall, at a minimum, include details
about the transmission of human immunodeficiency virus (HIV), the
etiologic agent for AIDS, symptoms of AIDS or AIDS-related
conditions, prevention through avoidance or cleaning of needles,
***ual practices which constitute high risk, low risk, and no risk
(including abstinence), and resources for assistance if the person
decides to take a test for the etiologic agent for AIDS and receives
a positive test result. The program shall also include other
relevant medical and prevention information as it becomes available.

(c) A person sentenced to a drug diversion program pursuant to
Section 1001.10 shall not be required to participate in an AIDS
prevention education program, provided that the drug diversion
program includes an AIDS prevention education component that meets
the requirements of subdivision (b).

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[align=left]1001.15. (a) In addition to the fees authorized or required by
other provisions of law, a judge may require the payment of an
administrative fee, as part of an enrollment fee in a diversion
program, by a defendant accused of a felony to cover the actual cost
of any criminalistics laboratory analysis, the actual cost of
processing a request or application for diversion, and the actual
cost of supervising the divertee pursuant to Chapter 2.5 (commencing
with Section 1000), not to exceed five hundred dollars ($500). The
fee shall be payable at the time of enrollment in the diversion
program. The court shall take into consideration the defendant's
ability to pay, and no defendant shall be denied diversion because of
his or her inability to pay.
(b) As used in this section, "criminalistics laboratory" means a
laboratory operated by, or under contract with a city, county, or
other public agency, including a criminalistics laboratory of the
Department of Justice, which has not less than one regularly employed
forensic scientist engaged in the analysis of solid dose material
and body fluids for controlled substances, and which is registered as
an analytical laboratory with the Drug Enforcement Administration of
the United States Department of Justice for the processing of all
scheduled controlled substances.
(c) In addition to the fees authorized or required by other
provisions of law, a judge may require the payment of an
administrative fee, as part of an enrollment fee in a diversion
program, by a defendant accused of an act charged as, or reduced to,
a misdemeanor to cover the actual cost of processing a request or
application for diversion pursuant to Chapter 2.6 (commencing with
Section 1000.6), the actual costs of reporting to the court on a
defendant's eligibility and suitability for diversion, the actual
cost of supervising the divertee, and for the actual costs of
performing any duties required pursuant to Section 1000.9, not to
exceed three hundred dollars ($300). The fee shall be payable at the
time of enrollment in the diversion program. The fee shall be
determined on a sliding scale according to the defendant's ability to
pay, and no defendant shall be denied diversion because of his or
her inability to pay.
(d) The fee established pursuant to this section may not exceed
the actual costs required for the programs authorized to be
reimbursed by this fee. All proceeds from the fee established
pursuant to this section shall be allocated only for the programs
authorized to be reimbursed by this fee.
(e) As used in this section, "diversion" also means deferred entry
of judgment pursuant to Chapter 2.5 (commencing with Section 1000).



1001.16. (a) In addition to the fees authorized or required by
other provisions of law, a judge may require the payment of an
administrative fee, as part of an enrollment fee in a diversion
program, by a defendant accused of a misdemeanor to cover the actual
cost of any criminalistics laboratory analysis in a case involving a
violation of the California Uniform Controlled Substances Act under
Division 10 (commencing with Section 11000) of the Health and Safety
Code, the actual cost of processing a request or application for
diversion, and the actual cost of supervising the divertee, not to
exceed three hundred dollars ($300). The fee shall be payable at the
time of enrollment in the diversion program. The court shall take
into consideration the defendant's ability to pay, and no defendant
shall be denied diversion because of his or her inability to pay.
(b) As used in this section, "criminalistics laboratory" means a
laboratory operated by, or under contract with, a city, county, or
other public agency, including a criminalistics laboratory of the
Department of Justice, which has not less than one regularly employed
forensic scientist engaged in the analysis of solid dose material
and body fluids for controlled substances and which is registered as
an analytical laboratory with the Drug Enforcement Administration of
the United States Department of Justice for the processing of all
scheduled controlled substances.
(c) This section shall apply to all deferred entry of judgment and
misdemeanor pretrial diversion programs established pursuant to this
title.
(d) The fee established pursuant to this section may not exceed
the actual costs required for the programs authorized to be
reimbursed by this fee. All proceeds from the fee established
pursuant to this section shall be allocated only for the programs
authorized to be reimbursed by this fee.
(e) As used in this section, "diversion" also means deferred entry
of judgment pursuant to Chapter 2.5 (commencing with Section 1000).[/align]

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DEVELOPMENTAL DISABILITIES


1001.20. As used in this chapter:
(a) "Cognitive Developmental Disability" means any of the
following:
(1) "Mental retardation," meaning a condition of significantly
subaverage general intellectual functioning existing concurrently
with deficits in adaptive behavior and manifested during the
developmental period.
(2) "Autism," meaning a diagnosed condition of markedly abnormal
or impaired development in social interaction, in communication, or
in both, with a markedly restricted repertoire of activity and
interests.
(3) Disabling conditions found to be closely related to mental
retardation or autism, or that require treatment similar to that
required for individuals with mental retardation or autism, and that
would qualify an individual for services provided 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 towards the alleviation of cognitive
developmental disability or towards social, personal, physical, or
economic habilitation or rehabilitation of an individual with a
cognitive 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 his or her family, protective
and other social and socio-legal services, information and referral
services, follow-along services, and transportation services
necessary to assure delivery of services to persons with cognitive
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 which cannot be provided by state agencies
to developmentally disabled persons residing in a particular
geographic catchment area, and which 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 or his or her
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, which 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
which 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, which 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 which 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.



1001.21. (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 for the developmentally disabled and who is determined to be a
person with a cognitive developmental disability by the regional
center, and who therefore is eligible for its services.
(b) This chapter applies to any offense which is charged as or
reduced to a misdemeanor, except that diversion shall not be ordered
when the defendant previously has been diverted under this chapter
within two years prior to the present criminal proceedings.
(c) This chapter shall apply to persons who have a condition
described in paragraph (2) or (3) of subdivision (a) of Section
1001.20 only if that person was a client of a regional center at the
time of the offense for which he or she is charged.



1001.22. 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 cognitive
developmental disability, as defined in subdivision (a) of Section
1001.20, and the defendant consents to the diversion process and to
his or her case being evaluated for eligibility for regional center
services, and waives his or her 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 cognitive 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 such a 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, he or she 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 he or she may have to stand trial
for the alleged offense.
(D) A clear statement that should the defendant fail in meeting
the terms of his or her 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, cognitive
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.



1001.23. (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 cognitive developmental disability, the criminal proceedings for
the offense charged shall proceed. If the defendant is found to have
a cognitive 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 his or
her 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, and the report of the prosecutor
relating to his or her recommendation for or against diversion, and
any other relevant information, 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) Where 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. Where 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.


1001.24. 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. 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. 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. 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. 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. If it appears that the divertee is not meeting the terms
and conditions of his or her diversion program, the court may hold a
hearing and amend such 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 any such modification of a diversion order,
the court may hold a hearing to determine whether the diverted
criminal proceedings should be reinstituted if it appears that the
divertee's performance in the diversion program is unsatisfactory, or
if the divertee is subsequently charged with a felony during the
period of diversion.
(a) 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.
(b) 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.
(c) 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.
(d) 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.


1001.30. 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. 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. Any record filed with the State Department of Justice
shall indicate the disposition of those cases diverted pursuant to
this chapter.


1001.33. (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. 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.
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[align=left]1001.40. Notwithstanding any other provision of law, a county
acting on behalf of one or more individual courts may by ordinance
establish a program that provides for pretrial diversion by the court
of any person issued a notice to appear for a traffic violation to
attend any traffic violator school licensed pursuant to Chapter 1.5
(commencing with Section 11200) of Division 5 of the Vehicle Code.[/align]

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1001.50. (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.



1001.51. (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
defendant:
(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
offense.
(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
offense.
(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
the defendant.
(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
17.
(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.



1001.52. (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
the investigation.
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.




1001.53. 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
so directing.
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.


1001.54. 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.



1001.55. (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.

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1001.60. Upon the adoption of a resolution by the board of
supervisors declaring that there are sufficient funds available to
fund the program, the district attorney may create within his office
a diversion program pursuant to this chapter for persons who write
bad checks. For purposes of this chapter, "writing a bad check"
means making, drawing, uttering, or delivering any check or draft
upon any bank or depository for the payment of money where there is
probable cause to believe there has been a violation of Section 476a.
The program may be conducted by the district attorney or by a
private entity under contract with the district attorney.




1001.61. The district attorney may refer a bad check case to the
diversion program. Except as provided in Section 1001.64, this
chapter does not limit the power of the district attorney to
prosecute bad check complaints.


1001.62. On receipt of a bad check case, the district attorney
shall determine if the case is one which is appropriate to be
referred to the bad check diversion program. In determining whether
to refer a case to the bad check diversion program, the district
attorney shall consider, but is not limited to, all of the following:

(a) The amount of the bad check.
(b) If the person has a prior criminal record or has previously
been diverted.
(c) The number of bad check grievances against the person
previously received by the district attorney.
(d) Whether there are other bad check grievances currently pending
against the person.
(e) The strength of the evidence, if any, of intent to defraud the
victim.



1001.63. On referral of a bad check case to the diversion program,
a notice shall be forwarded by mail to the person alleged to have
written the bad check which contains all of the following:
(a) The date and amount of the bad check.
(b) The name of the payee.
(c) The date before which the person must contact the person
designated by the district attorney concerning the bad check.
(d) A statement of the penalty for issuance of a bad check.



1001.64. The district attorney may enter into a written agreement
with the person to forego prosecution on the bad check for a period
to be determined by the district attorney, not to exceed six months,
pending all of the following:
(a) Completion of a class or classes conducted by the district
attorney or private entity under contract with the district attorney.

(b) Full restitution being made to the victim of the bad check.
(c) Full payment of the collection fee, if any, specified in
Section 1001.65.



1001.65. (a) A district attorney may collect a fee if his or her
office collects and processes a bad check. The amount of the fee
shall not exceed thirty-five dollars ($35) for each bad check in
addition to the actual amount of any bank charges incurred by the
victim as a result of the offense.
(b) Notwithstanding subdivision (a), when a criminal complaint is
filed in a bad check case after the maker of the check fails to
comply with the terms of the bad check diversion program, the court,
after conviction, may impose a bad check collection fee for the
collection and processing efforts by the district attorney of not
more than thirty-five dollars ($35) for each bad check in addition to
the actual amount of any bank charges incurred by the victim as a
result of the offense, not to exceed one thousand dollars ($1,000) in
the aggregate. The court also may, as a condition of probation,
require a defendant to participate in and successfully complete a
check writing education class. If so required, the court shall make
inquiry into the financial condition of the defendant and, upon a
finding that the defendant is able in whole or part to pay the
expense of the education class, the court may order him or her to pay
for all or part of that expense.
(c) If the district attorney elects to collect any fee for bank
charges incurred by the victim pursuant to this section, that fee
shall be paid to the victim for any bank fees that the victim may
have been assessed. In no event shall reimbursement of a bank charge
to the victim pursuant to subdivision (a) or (b) exceed ten dollars
($10) per check.



1001.66. At no time shall a defendant be required to make an
admission of guilt as a prerequisite for placement in a precomplaint
diversion program.


1001.67. No statement, or information procured therefrom, made by
the defendant in connection with the determination of his or her
eligibility for diversion, and no statement, or information procured
therefrom, made by the defendant, subsequent to the granting of
diversion or while participating in the program, and no information
contained in any report made with respect thereto, and no statement
or other information concerning the defendant's participation in the
program shall be admissible in any action or proceeding.[/align]

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1001.70. (a) Every local prosecutor with jurisdiction to prosecute
violations of Section 272 shall review annually any diversion program
established pursuant to this chapter, and no program shall commence
or continue without the approval of the local prosecutor. No person
shall be diverted under a program unless it has been approved by the
local prosecutor. Nothing in this subdivision shall authorize the
prosecutor to determine whether a particular defendant shall be
diverted.
(b) 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.



1001.71. This chapter shall apply whenever a case is before any
court upon an accusatory pleading alleging a parent or legal guardian
to have violated Section 272 with respect to his or her minor child,
and all of the following apply to the defendant:
(a) The defendant's record does not indicate that probation or
parole has ever been revoked without thereafter being completed.
(b) The defendant's record does not indicate that he or she has
previously been diverted pursuant to this chapter.



1001.72. (a) If the defendant consents and waives his or her right
to a speedy trial, the case shall be referred to the probation
department. The probation department shall conduct an investigation
as is necessary to determine whether the defendant qualifies for
diversion under this chapter, and whether he or she is a person who
would be benefited by education, treatment, or rehabilitation. The
probation department shall also determine which education, treatment,
or rehabilitative plan would benefit the defendant. The probation
department shall report its findings and recommendations 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 (a), 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
the investigation.
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.



1001.73. 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 the 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 the 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
so directing.
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.


1001.74. 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 was 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 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, the criminal charges shall be dismissed.



1001.75. (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 that 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 would 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.[/align]

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1001.90. (a) For all persons charged with a felony or misdemeanor
whose case is diverted by the court pursuant to this title, the court
shall impose on the defendant a diversion restitution fee in
addition to any other administrative fee provided or imposed under
the law. This fee shall not be imposed upon persons whose case is
diverted by the court pursuant to Chapter 2.8 (commencing with
Section 1001.20).
(b) The diversion restitution fee imposed pursuant to this section
shall be set at the discretion of the court and shall be
commensurate with the seriousness of the offense, but shall not be
less than one hundred dollars ($100), and not more than one thousand
dollars ($1,000).
(c) The diversion restitution fee shall be ordered regardless of
the defendant's present ability to pay. However, if the court finds
that there are compelling and extraordinary reasons, the court may
waive imposition of the fee. When the waiver is granted, the court
shall state on the record all reasons supporting the waiver. Except
as provided in this subdivision, the court shall impose the separate
and additional diversion restitution fee required by this section.
(d) In setting the amount of the diversion restitution fee in
excess of the one hundred dollar ($100) minimum, the court shall
consider any relevant factors, including, but not limited to, the
defendant's ability to pay, the seriousness and gravity of the
offense and the circumstances of its commission, any economic gain
derived by the defendant as a result of the crime, and the extent to
which any other person suffered any losses as a result of the crime.
Those losses may include pecuniary losses to the victim or his or
her dependents as well as intangible losses, such as psychological
harm caused by the crime. Consideration of a defendant's ability to
pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating the lack of his or her ability
to pay. Express findings by the court as to the factors bearing on
the amount of the fee shall not be required. A separate hearing for
the diversion restitution fee shall not be required.
(e) The court shall not limit the ability of the state to enforce
the fee imposed by this section in the manner of a judgment in a
civil action. The court shall not modify the amount of this fee
except to correct an error in the setting of the amount of the fee
imposed.
(f) The fee imposed pursuant to this section shall be immediately
deposited in the Restitution Fund for use pursuant to Section 13967
of the Government Code.
(g) The board of supervisors of any county may impose a fee at its
discretion to cover the actual administrative costs of collection of
the restitution fee, not to exceed 10 percent of the amount ordered
to be paid. Any fee imposed pursuant to this subdivision shall be
deposited in the general fund of the county.
(h) The state shall pay the county agency responsible for
collecting the diversion restitution fee owed to the Restitution Fund
under this section, 10 percent of the funds so owed and collected by
the county agency and deposited in the Restitution Fund. This
payment shall be made only when the funds are deposited in the
Restitution Fund within 45 days of the end of the month in which the
funds are collected. Receiving 10 percent of the moneys collected as
being owed to the Restitution Fund shall be considered an incentive
for collection efforts and shall be used for furthering these
collection efforts. The 10 percent rebates shall be used to augment
the budgets for the county agencies responsible for collection of
funds owed to the Restitution Fund as provided in this section. The
10 percent rebates shall not be used to supplant county funding.
(i) As used in this section, "diversion" also means deferred entry
of judgment pursuant to Chapter 2.5 (commencing with Section 1000).

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1002. The only pleading on the part of the defendant is either a
demurrer or a plea.



1003. Both the demurrer and plea must be put in, in open Court,
either at the time of the arraignment or at such other time as may be
allowed to the defendant for that purpose.



1004. The defendant may demur to the accusatory pleading at any
time prior to the entry of a plea, when it appears upon the face
thereof either:
1. If an indictment, that the grand jury by which it was found had
no legal authority to inquire into the offense charged, or, if any
information or complaint that the court has no jurisdiction of the
offense charged therein;
2. That it does not substantially conform to the provisions of
Sections 950 and 952, and also Section 951 in case of an indictment
or information;
3. That more than one offense is charged, except as provided in
Section 954;
4. That the facts stated do not constitute a public offense;
5. That it contains matter which, if true, would constitute a
legal justification or excuse of the offense charged, or other legal
bar to the prosecution.



1005. The demurrer must be in writing, signed either by the
defendant or his counsel, and filed. It must distinctly specify the
grounds of objection to the accusatory pleading or it must be
disregarded.


1006. Upon the demurrer being filed, the argument upon the
objections presented thereby must be heard immediately, unless for
exceptional cause shown, the court shall grant a continuance. Such
continuance shall be for no longer time than the ends of justice
require, and the court shall enter in its minutes the facts requiring
it.



1007. Upon considering the demurrer, the court must make an order
either overruling or sustaining it. If the demurrer to an indictment
or information is overruled, the court must permit the defendant, at
the defendant's election, to plead, which the defendant must do
forthwith, unless the court extends the time. If the demurrer is
sustained, the court must, if the defect can be remedied by
amendment, permit the indictment or information to be amended, either
forthwith or within such time, not exceeding 10 days, as it may fix,
or, if the defect or insufficiency therein cannot be remedied by
amendment, the court may direct the filing of a new information or
the submission of the case to the same or another grand jury. If the
demurrer to a complaint is sustained, the court must, if the defect
can be remedied, permit the filing of an amended complaint within
such time not exceeding 10 days as it may fix. The orders made under
this section shall be entered in the docket or minutes of the court.



1008. If the demurrer is sustained, and no amendment of the
accusatory pleading is permitted, or, in case an amendment is
permitted, no amendment is made or amended pleading is filed within
the time fixed therefor, the action shall be dismissed, and, except
as provided in Section 1010, the court must order, if the defendant
is in custody, that he be discharged or if he has been admitted to
bail, that his bail be exonerated, or, if money or other property has
been deposited instead of bail for his appearance, that such money
or other property be refunded to him or to the person or persons
found by the court to have deposited such money or other property on
his behalf.



1009. An indictment, accusation or information may be amended by
the district attorney, and an amended complaint may be filed by the
prosecuting attorney, without leave of court at any time before the
defendant pleads or a demurrer to the original pleading is sustained.
The court in which an action is pending may order or permit an
amendment of an indictment, accusation or information, or the filing
of an amended complaint, for any defect or insufficiency, at any
stage of the proceedings, or if the defect in an indictment or
information be one that cannot be remedied by amendment, may order
the case submitted to the same or another grand jury, or a new
information to be filed. The defendant shall be required to plead to
such amendment or amended pleading forthwith, or, at the time fixed
for pleading, if the defendant has not yet pleaded and the trial or
other proceeding shall continue as if the pleading had been
originally filed as amended, unless the substantial rights of the
defendant would be prejudiced thereby, in which event a reasonable
postponement, not longer than the ends of justice require, may be
granted. An indictment or accusation cannot be amended so as to
change the offense charged, nor an information so as to charge an
offense not shown by the evidence taken at the preliminary
examination. A complaint cannot be amended to charge an offense not
attempted to be charged by the original complaint, except that
separate counts may be added which might properly have been joined in
the original complaint. The amended complaint must be verified but
may be verified by some person other than the one who made oath to
the original complaint.


1010. When an indictment or information is dismissed after the
sustaining of a demurrer, or at any other stage of the proceedings
because of any defect or insufficiency of the indictment or
information, if the court directs that the case be resubmitted to the
same or another grand jury or that a new information be filed, the
defendant shall not be discharged from custody, nor the defendant's
bail exonerated nor money or other property deposited instead of bail
on the defendant's behalf refunded, but the same proceedings must be
had on such direction as are prescribed in Sections 997 and 998.



1012. When any of the objections mentioned in Section 1004 appears
on the face of the accusatory pleading, it can be taken only by
demurrer, and failure so to take it shall be deemed a waiver thereof,
except that the objection to the jurisdiction of the court and the
objection that the facts stated do not constitute a public offense
may be taken by motion in arrest of judgment.[/align]