Primary Caregiver Diversion
What is primary caregiver diversion?
On October 8, 2019, Governor Newsom signed Senate Bill No. 394 into law. (Stats. 2019, ch. 593.) The purpose of this bill was “to create a pretrial diversion program for defendants who are primary caregivers of a child under 18 years of age, as specified, who are charged with a misdemeanor or a nonserious, nonviolent felony, and who are not being placed into diversion for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.” (Stats. 2019, ch. 593.) Stated another way, Senate Bill No. 394 created a program where qualifying criminal defendants can be placed into a “diversion program” instead of going to prison if they can show they are the primary caregiver of a child. And when a person qualifies, “criminal proceedings are suspended without a plea of guilty” for the diversion period. (Pen. Code, § 1001.83, subd. (a).) Thus, there is no guilty plea and no admission of guilt.
The bill sets the diversion period at not less than six months but not more than twenty-four months. (Stats. 2019, ch. 593.) So if you qualify for primary caregiver diversion, you will be in the diversion program for a minimum of six months and a maximum of two years.
Who qualifies for primary caregiver diversion?
Under the new law, there must be an agreement in writing between the judge, prosecution, and defense attorney to establish and conduct a pretrial diversion program for primary caregivers. (Pen. Code, § 1001.83, subd. (a).) There are then six requirements that must be met in order for a criminal defendant to be granted diversion under this law:
- The defendant is a custodial parent or legal guardian of a minor child under 18 years of age, presently resides in the same household as that child, presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant’s absence in the child’s life would be detrimental to the child.
- The defendant has been advised of and waived the right to a speedy trial and a speedy preliminary hearing.
- The defendant has been informed of and agrees to comply with the requirements of the program.
- The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, or to the minor child in their custody, if allowed to remain in the community. The court may consider the positions of the prosecuting entity and defense counsel, the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant, and any other factors that the court deems appropriate.
- The defendant is not being placed into a diversion program, pursuant to this section, for any serious felony as described in Section 1192.7 or 1192.8 or violent felony as described in subdivision (c) of Section 667.5.
- The defendant is not being placed into a diversion program pursuant to this section for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.
(Pen. Code, § 1001.83, subd. (d)(1)-(6).) In sum, to qualify, a defendant must (1) be the primary caregiver of a child, (2) waive the right to a speedy trial and preliminary hearing, (3) agree to comply with the terms of pretrial diversion, (4) not pose a risk to the public, (5) not have committed a serious or violent felony, and (6) not have committed a crime against the child they are the primary caregiver for.
What programs will I be sent to if I qualify for primary caregiver diversion?
The statute is a little vague as to the specifics of what the diversion program should entail. Nevertheless, it states that the program may include, but is not limited to, the following:
- Parenting classes.
- Family and individual counseling.
- Mental health screening, education, and treatment.
- Family case management services.
- Drug and alcohol treatment.
- Domestic violence education and prevention.
- Physical and sexual abuse counseling.
- Anger management.
- Vocational and educational services.
- Job training and placement.
- Affordable and safe housing assistance.
- Financial literacy courses.
(Pen. Code, § 1001.83, subd. (b)(1)-(2).) Senate Bill No. 394 similarly states that a qualifying criminal defendant will be required to “participate in classes relating to subjects that may include parenting, anger management, and financial literacy, and to receive services relating to housing, employment, and drug, alcohol, and mental health treatment, among others.” (Stats. 2019, ch. 593.)
What happens if I successfully complete primary caregiver diversion?
The new law provides that “[i]f the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.” (Pen. Code, § 1001.83, subd. (g).) In other words, if you successfully complete primary caregiver diversion, the court will dismiss your case. A court is permitted to determine that a defendant has successfully completed primary caregiver diversion “if the defendant has substantially complied with the requirements of diversion, and has avoided significant new violations of law.” (Pen. Code, § 1001.83, subd. (g).) So if you substantially comply with the program requirements and don’t get into further trouble with the law, you will be seen as successfully completing primary caregiver diversion.
What should I do if I think I might qualify for this program?
If you think you might qualify for primary caregiver diversion, you should immediately notify your public defender or defense attorney. It is important that you do so before you plead guilty or no contest. Your attorney will then speak with the prosecutor and trial judge regarding whether primary caregiver diversion is a possibility for you.