BILL NUMBER: AB 750 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 1, 2009
INTRODUCED BY Assembly Member Bass
FEBRUARY 26, 2009
An act to amend Section 851.90 of, to amend and renumber Section
1000.8 of, and to add Chapter 2.6 (commencing with Section 1000.8) to
Title 6 of Part 2 of, the Penal Code, relating to drug diversion.
LEGISLATIVE COUNSEL'S DIGEST
AB 750, as amended, Bass. Deferred entry of judgment.
Existing law provides that entry of judgment against certain
defendants may be deferred with respect to defendants who are charged
with certain enumerated crimes and meet certain criteria including
that they have no prior convictions for any offense involving
controlled substances and have had no prior felony convictions within
the 5 years prior, as specified. Existing law provides that if the
prosecuting attorney determines that a defendant may qualify for a
deferred entry of judgment, the prosecuting attorney must advise the
defendant and his or her attorney in writing, as specified. Existing
law provides that, upon successful completion of a deferred entry of
judgment program, the arrest upon which the judgment was deferred
shall be deemed to have never occurred and allows for the sealing of
court and arrest records where the interests of justice would be
served, as specified. Existing law similarly establishes a preguilty
plea drug court program wherein criminal proceedings are suspended
without a plea of guilty for designated defendants.
This bill would authorize a superior court, with the concurrence
of the prosecuting attorney of the county, to create a deferred entry
of judgment reentry program aimed at preventing recidivism among
first-time nonviolent felony drug offenders. The bill would specify
the characteristics of that program and the process for eligibility
for the program.
The California Constitution requires that a statute, a court rule,
or other authority adopted that limits the people's right of access
to information, including the writings of public officials and
agencies, shall be adopted with findings demonstrating the interest
protected by the limitation and the need for protecting that
interest.
This bill would make legislative findings that any limitation on
the public's right of access to the writings of public officials and
agencies made by its provisions is necessary to provide an incentive
for program participants to complete the diversion program and to
prevent recidivism among nonviolent offenders.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The San Francisco District Attorney's Office has developed an
effective reentry program, Back On Track, that reduces recidivism
among first-time, low-level, nonviolent felony drug offenders and
costs less than traditional corrections approaches. The
three year three-year recidivism rate for Back
On Track participants is significantly lower than the 53 percent
recidivism rate for the same population in state prison. As a result,
the Back On Track program has been selected as a national model.
This act is intended to facilitate the replication of this successful
program.
(b) Successful reentry models combine strict accountability with
effective mechanisms for offenders to become self-sufficient and
crime free.
(c) Successful reentry models include public-private partnerships
among law enforcement, government agencies, business and labor
associations, private employers, and community-based organizations,
formed to connect former offenders with living wage employment
opportunities and to take advantage of incentives for hiring former
offenders.
SEC. 2. Section 851.90 of the Penal Code is amended to read:
851.90. (a) (1) Whenever a person is diverted pursuant to a drug
diversion program administered by a superior court pursuant to
Section 1000.5 or is admitted to a deferred entry of judgment program
pursuant to Section 1000 or 1000.8, the person successfully
completes the program, and it appears to the judge presiding at the
hearing where the diverted charges are dismissed that the interests
of justice would be served by sealing the records of the arresting
agency and related court files and records with respect to the
diverted person, the judge may order those records and files to be
sealed, including any record of arrest or detention, upon the written
or oral motion of any party in the case, or upon the court's own
motion, and with notice to all parties in the case.
(2) If the order is made, the clerk of the court shall thereafter
not allow access to any records concerning the case, including the
court file, index, register of actions, or other similar records.
(3) If the order is made, the court shall give a copy of the order
to the defendant and inform the defendant that he or she may
thereafter state that he or she was not arrested for the charge.
(4) The defendant may, except as specified in subdivisions (b),
(c), and (d), indicate in response to any question concerning the
defendant's prior criminal record that the defendant was not arrested
or granted statutorily authorized drug diversion or deferred entry
of judgment for the offense.
(5) Subject to subdivisions (b), (c), and (d), a record pertaining
to an arrest resulting in the successful completion of a statutorily
authorized drug diversion or deferred entry of judgment program
shall not, without the defendant's permission, be used in any way
that could result in the denial of any employment, benefit, or
certificate.
(6) Sealing orders made pursuant to this subdivision shall not be
forwarded to the Department of Justice to be included or notated in
the department's manual or electronic fingerprint image or criminal
history record systems. Any sealing order made pursuant to this
subdivision and received by the Department of Justice need not be
processed by the department.
(b) The defendant shall be advised that, regardless of the
defendant's successful completion of a statutorily authorized drug
diversion or deferred entry of judgment program, the arrest upon
which the case was based shall 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
the defendant 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.
(c) The defendant shall be advised that, regardless of the
defendant's successful completion of a statutorily authorized drug
diversion or deferred entry of judgment program, the arrest upon
which the case was based shall be disclosed by the Department of
Justice or the court in which the matter was heard in response to any
subsequent inquiry by the district attorney, court, probation
department, or counsel for the defendant concerning the defendant's
eligibility for any statutorily authorized drug diversion or deferred
entry of judgment program in the future.
(d) A sealing order made pursuant to this section shall not apply
to any record or document received or maintained by the Department of
Justice; the court shall advise a defendant that, notwithstanding
the issuance of a sealing order pursuant to this section, the
Department of Justice shall continue to be able to maintain and
disseminate any records or documents received or maintained by the
department, as authorized by law.
SEC. 3. Section 1000.8 of the Penal Code is amended and renumbered
to read:
1000.6. (a) Where a person is participating in a deferred entry
of judgment program or a preguilty plea program pursuant to this
chapter, the person may also participate in a licensed methadone or
levoalphacetylmethadol (LAAM) program if the following conditions are
met:
(1) The sheriff allows a methadone program to operate in the
county jail.
(2) The participant allows release of his or her medical records
to the court presiding over the participant's preguilty or deferred
entry program for the limited purpose of determining whether or not
the participant is duly enrolled in the licensed methadone or LAAM
program and is in compliance with deferred entry or preguilty plea
program rules.
(b) If the conditions specified in paragraphs (1) and (2) of
subdivision (a) are met, participation in a methadone or LAAM
treatment program shall not be the sole reason for exclusion from a
deferred entry or preguilty plea program. A methadone or LAAM patient
who participates in a preguilty or deferred entry program shall
comply with all court program rules.
(c) A person who is participating in a deferred entry of judgment
program or preguilty plea program pursuant to this chapter who
participates in a licensed methadone or LAAM program shall present to
the court a declaration from the director of the methadone or LAAM
program, or the director's authorized representative, that the person
is currently enrolled and in good standing in the program.
(d) Urinalysis results that only establish that a person described
in this section has ingested or taken the methadone administered or
prescribed by a licensed methadone or LAAM program shall not be
considered a violation of the terms of the deferred entry of judgment
or preguilty plea program under this chapter.
(e) Except as provided in subdivisions (a) to (d), inclusive, this
section shall not be interpreted to amend any provisions governing
deferred entry and diversion programs.
SEC. 4. Chapter 2.6 (commencing with Section 1000.8) is added to
Title 6 of Part 2 of the Penal Code, to read:
CHAPTER 2.6. DEFERRED ENTRY OF JUDGMENT REENTRY PROGRAM
1000.8. A superior court, with the concurrence of the prosecuting
attorney of the county, may create a "Back on Track" deferred entry
of judgment reentry program aimed at preventing recidivism among
first-time nonviolent felony drug offenders. No defendant who has
been convicted of a violation of an offense enumerated in subdivision
(c) of Section 290 or in Section 1192.7 shall be eligible for the
program established in this chapter. When creating this program, the
prosecuting attorney, together with the presiding judge and a
representative of the criminal defense bar selected by the presiding
judge of the superior court may agree to establish a "Back on Track"
deferred entry of judgment program pursuant to the provisions of this
chapter. The agreement shall specify which low-level nonviolent
felony drug offenses under the Health and Safety Code will be
eligible for the program and a process for selecting participants.
The program shall have the following characteristics:
(a) A dedicated calendar.
(b) Leadership by a superior court judicial officer who is
assigned by the presiding judge.
(c) Clearly defined eligibility criteria to enter the program and
clearly defined criteria for completion of the program.
(d) Legal incentives for defendants to successfully complete the
program, including dismissal or reduction of criminal charges upon
successful completion of the program.
(e) Close supervision to hold participants accountable to program
compliance, including the use of graduated sanctions and frequent,
ongoing appearances before the court regarding participants' program
progress and compliance with all program terms and conditions. The
court may use available legal mechanisms, including return to custody
if necessary, for failure to comply with the supervised plan.
(f) Appropriate transitional programming for participants, based
on available resources from county and community service providers
and other agencies. The transitional programming may include, but is
not limited to, any of the following:
(1) Vocational training, readiness, and placement.
(2) Educational training, including assistance with acquiring a
G.E.D. or high school diploma and assistance with admission to
college.
(3) Substance abuse treatment.
(4) Assistance with obtaining identification cards and driver's
licenses.
(5) Parenting skills training and assistance in becoming compliant
with child support obligations.
(g) The program may develop a local, public-private partnership
between law enforcement, government agencies, private employers, and
community-based organizations for the purpose of creating meaningful
employment opportunities for participants and to take advantage of
incentives for hiring program participants.
1000.9. The prosecuting attorney shall determine whether a
defendant is eligible for participation in the deferred entry of
judgment reentry program.
(a) If the prosecuting attorney determines that this section may
be applicable to the defendant, he or she shall advise the defendant
and his or her attorney in writing of that determination. This
notification shall include the following:
(1) A full description of the procedures for deferred entry of
judgment.
(2) A general explanation of the role and authority of the
prosecuting attorney, the program, and the court in the process.
(3) A clear statement that in lieu of trial, the court may grant
deferred entry of judgment with respect to the current crime or
crimes charged if the defendant pleads guilty to each charge and
waives time for the pronouncement of judgment, and that, upon the
defendant's successful completion of the program and the motion of
the prosecuting attorney, the court will dismiss the charge or
charges against the defendant and the provisions of Sections 851.90
and 1203.4 will apply.
(4) A clear statement that failure to comply with any condition
under the program may result in the prosecuting attorney or the court
making a motion for entry of judgment, whereupon the court will
render a finding of guilty to the charge or charges pled, enter
judgment, and schedule a sentencing hearing as otherwise provided in
this code.
(5) An explanation of criminal record retention and disposition
resulting from participation in the deferred entry of judgment
program and the defendant's rights relative to answering questions
about his or her arrest and deferred entry of judgment following
successful completion of the program.
(b) If the prosecuting attorney determines that the defendant is
eligible for the program, the prosecuting attorney shall state for
the record the grounds upon which the determination is based and
shall make this information available to the defendant and his or her
attorney. This procedure is intended to allow the court to set the
hearing for deferred entry of judgment at the arraignment.
(c) If the prosecuting attorney determines that the defendant is
ineligible for the program, the prosecuting attorney shall state for
the record the grounds upon which the determination is based and
shall make this information available to the defendant and his or her
attorney. The sole remedy of a defendant who is found ineligible for
deferred entry of judgment is a postconviction appeal. If the
prosecuting attorney does not deem the defendant eligible, or the
defendant does not consent to participate, the proceedings shall
continue as in any other case.
(d) Upon a motion by the prosecuting attorney for an entry of
judgment, before entering a judgment of guilty, the court may hold a
hearing to determine whether the defendant has failed to comply with
the program and should be terminated from the program.
1000.10. The following provisions apply to this chapter:
(a) A defendant's plea of guilty shall not constitute a conviction
for any purpose unless a judgment of guilty is entered pursuant to
Section 1000.3.
(b) Counties that opt to create a deferred entry of judgment
reentry program pursuant to Section 1000.8 of the Penal Code shall
not seek state reimbursement for costs associated with the
implementation, development, or operation of that program.
(c) To the extent county resources beyond those of the superior
court and the district attorney are needed to implement the program,
those agencies shall consult with the county board of supervisors and
other impacted county agencies to assess resources before program
implementation.
(c)
(d) Local law enforcement agencies and counties
administering the programs may seek state, federal,
federal or private funding for the purpose of
implementing the provisions of this chapter.
SEC. 5. The Legislature finds and declares that Sections 2 and 4
of this act impose a limitation on the public's right of access to
the meetings of public bodies or the writings of public officials and
agencies within the meaning of Section 3 of Article I of the
California Constitution. Pursuant to that constitutional provision,
the Legislature makes the following findings to demonstrate the
interest protected by this limitation and the need for protecting
that interest:
Preventing recidivism among nonviolent offenders improves public
safety and reduces long-term corrections costs. Effective reentry
programs achieve program compliance among offenders through a
combination of swift sanctions and strict accountability, along with
incentives such as the possibility of sealing case records upon
successful program completion and providing mechanisms for offenders
to become self-sufficient and crime-free.