County of Orange v. State Board of Control

[662]Opinion

WALLIN, J. Respondent County of Orange (County) filed a claim for reimbursement from appellant State Board of Control (Board) for the increased costs of its probation department incurred by County in implementing mandatory domestic violence diversion legislation. (Rev. & Tax. Code, § 2250 et seq.) The Board refused to hear the claim because it determined the legislation changed the penalty for a crime and therefore it lacked jurisdiction. (Rev. & Tax. Code, § 2253.2.)1 The County sought review of the Board’s decision by writ of mandate in the superior court. The court found the law establishing the diversion program did not change the penalty for a crime and issued a writ compelling the Board to exercise its jurisdiction over the claim. The Board appeals. We agree with the court below and affirm the judgment.

In 1979, the Legislature enacted a diversion program for persons arrested for acts of domestic violence. (Pen. Code, §§ 1000.6-1000.il.)2 Under the program, an accused who meets certain criteria can be diverted into a community program of education, treatment or rehabilitation while the criminal proceedings against him are suspended. The accused must consent to participation and waive his right to a speedy trial (§ 1000.7, subd. (b)), but no admission of guilt is required of him (§ 1000.6, subd. (c)). Upon the accused’s successful completion of the diversion program, the charges against him are dropped and his arrest is deemed never to have occurred. (§§ 1000.9, 1000.10.) If he is unsuccessful, however, he is returned to the court for resumption of the criminal proceedings. (§ 1000.9.)

Before diversion can be ordered, the court must refer potential cases to the probation department for an investigation to determine if the accused is one who would benefit from diversion and into which community program he should be placed. (§ 1000.7, subd. (b).) The probation department is also required to monitor the progress of the diverted person and to return him to court if he is not benefiting from the program or if he is convicted of any violent crime. (§ 1000.9.)

The Board argues that diversion constitutes an álternate penalty to the crime of domestic violence. It points out a diverted defendant is subjected to a penal statute and criminal judicial proceedings, and is placed under the supervision of the probation department with certain restrictions [663]