AB 2108

AB2108:v96#DOCUMENT

Bill Start

CALIFORNIA LEGISLATURE— 2025–2026 REGULAR SESSION

Assembly Bill

No. 2108

An act to amend Section 1001.81 of, and to add Chapter 2.955 (commencing with Section 1001.91) to Title 6 of Part 2 of, the Penal Code, relating to diversion.

LEGISLATIVE COUNSEL'S DIGEST

AB 2108, as amended, Sharp-Collins. Diversion: retail theft.

Existing law, until January 1, 2031, authorizes a city or county prosecuting attorney or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses. Existing law requires the prosecuting attorney in a participating county to either refer the case to the county probation department to conduct a prefiling investigation report and determine the appropriateness of program placement or, if the prosecuting attorney’s office operates the program, determine if the case is appropriate for referral. Existing law requires the county probation department or prosecuting attorney’s office to consider certain factors for referral, including, among others, whether the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.

This bill would require the prosecutor or county probation department, for certain theft offenses, including shoplifting and vandalism, to determine whether, based on certain criteria, specified defendants are eligible for a theft diversion program. The bill would require the prosecuting attorney to review their file for certain factors, including whether the offense charged involved a crime of violence or threatened violence and, if the defendant is eligible, would require the attorney to file a declaration or state for the record the grounds for the determination of the defendant’s eligibility. The bill would require the court to dismiss the action against the defendant at the end of the period of diversion if the defendant has complied with the imposed terms and conditions of diversion. By increasing the duties on local officials, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Digest Key

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES

Bill Text

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

SECTION 1.

Section 1001.81 of the Penal Code is amended to read:

1001.81.

(a) (1) The city or county prosecuting attorney or county probation department may create a diversion or deferred entry of judgment program pursuant to this section for persons who commit a theft offense or repeat theft offenses. The program may be conducted by the prosecuting attorney’s office or the county probation department.

(2) If a county creates a diversion program pursuant to this section, and the accusatory pleading is for a violation of Section 459.5, subdivision (b) of Section 473, or Section 476, 487, 488, 489, 490.1, 490.2, 496, or 594, the prosecuting attorney’s office or the county probation department shall evaluate whether the defendant is eligible for diversion pursuant to Section 1001.91.

(b) Except as provided in subdivision (e), this chapter does not limit the power of the prosecuting attorney to prosecute theft or repeat theft.

(c) Except as provided in paragraph (2) of subdivision (a), if a county creates a diversion or deferred entry of judgment program for individuals committing a theft offense or repeat theft offenses, on receipt of a case or at arraignment, the prosecuting attorney shall either refer the case to the county probation department to conduct a prefiling investigation report to assess the appropriateness of program placement or, if the prosecuting attorney’s office operates the program, determine if the case is one that is appropriate to be referred to the program. In determining whether to refer a case to the program, the probation department or prosecuting attorney shall consider, but is not limited to, all of the following factors:

(1) Any prefiling investigation report conducted by the county probation department or nonprofit contract agency operating the program that evaluates the individual’s risk and needs and the appropriateness of program placement.

(2) If the person demonstrates a willingness to engage in community service, restitution, or other mechanisms to repair the harm caused by the criminal activity and address the underlying drivers of the criminal activity.

(3) If a risk and needs assessment identifies underlying substance abuse or mental health needs or other drivers of criminal activity that can be addressed through the diversion or deferred entry of judgment program.

(4) If the person has a violent or serious prior criminal record or has previously been referred to a diversion program and failed that program.

(5) Any relevant information concerning the efficacy of the program in reducing the likelihood of participants committing future offenses.

(d) On referral of a case to the program, a notice shall be provided, or forwarded by mail, to the person alleged to have committed the offense with both of the following:

(1) The date by which the person must contact the diversion program or deferred entry of judgment program in the manner designated by the supervising agency.

(2) A statement of the penalty for the offense or offenses with which that person has been charged.

(e) The prosecuting attorney may enter into a written agreement with the person to refrain from, or defer, prosecution on the offense or offenses on the following conditions:

(1) Completion of the program requirements such as community service or courses reasonably required by the prosecuting attorney.

(2) Making adequate restitution or an appropriate substitute for restitution to the establishment or person from which property was stolen at the face value of the stolen property, if required by the program.

(f) For the purposes of this section, “repeat theft offenses” means being cited or convicted for misdemeanor or felony theft from a store or from a vehicle two or more times in the previous 12 months and failing to appear in court when cited for these crimes or continuing to engage in these crimes after release or after conviction.

SEC. 2.

Chapter 2.955 (commencing with Section 1001.91) is added to Title 6 of Part 2 of the Penal Code, to read:

CHAPTER 2.955. Theft Diversion

1001.91.

(a) This section shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 459.5, subdivision (b) of Section 473, Section 476, 487, 488, 489, 490.1, 490.2, 496, or 594, and it appears to the prosecuting attorney that both all of the following apply to the defendant:

(1) The offense charged did not involve a crime of violence or threatened violence.

(2) There is no evidence of a contemporaneous violation relating to theft other than a violation of the offenses listed in this subdivision.

(3) The offense charged is not a felony.

(b) (1) The prosecuting attorney shall review a defendant’s file to determine whether subdivision (a) applies to the defendant. If the defendant is found eligible, the prosecuting attorney shall file a declaration with the court, or state for the record the grounds for whether the defendant is eligible. That information shall be made available to the defendant and their attorney.

(2) This procedure is intended to allow the court to set the hearing for pretrial diversion at the arraignment.

(3) If the defendant is found ineligible for diversion based on the criteria in subdivision (a), the prosecuting attorney shall file a declaration with the court, or state for the record the grounds for the determination that the defendant is ineligible. That information shall be made available to the defendant and their attorney.

(c) The sole remedy for a defendant who is found ineligible for pretrial diversion pursuant to this chapter is a postconviction appeal.

(d) (1) If the defendant is referred to pretrial diversion by the court pursuant to this section, the court may order the defendant to comply with terms, conditions, or programs that the court deems appropriate.

(2) The court may consider all available workforce programs, including, but not limited to, workforce development, vocational training, and employment placement programs.

(e) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the court shall dismiss the action against the defendant.

(f) Upon successful completion of the terms, conditions, or programs ordered by the court pursuant to this section, the arrest upon which diversion was imposed shall be deemed to have never occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of the terms, conditions, or programs ordered by the court shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(g) The defendant shall be advised that, regardless of their successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (a), this section does not relieve them 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.

(h) This section does not apply to a person who has been charged pursuant to Section 666.1.

(i) This section does not limit diversion eligibility under any other law.

(j) For purposes of this chapter, “contemporaneous violation” means a violation that occurs at the same time as or during the same course of conduct as the offenses charged in the accusatory pleading.

SEC. 3.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.