2009 California Penal Code - Section 1001.20-1001.34 :: Chapter 2.8. Diversion Of Defendants With Cognitive Developmental Disabilities

PENAL CODE
SECTION 1001.20-1001.34

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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