Amended in Senate August 22, 2014

Amended in Assembly May 23, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2124

Introduced by Assembly Member Lowenthal

February 20, 2014

An act to add begin insert and repeal end insert Chapter 2.96 (commencing with Section begin delete 1001.95) to end delete begin insert 1001.94) of end insert Title 6 of Part 2 of the Penal Code, relating to criminal sentencing.

LEGISLATIVE COUNSEL’S DIGEST

AB 2124, as amended, Lowenthal. Misdemeanor offenses: deferral of begin delete sentencing. end delete begin insert sentencing: pilot program. end insert

Existing law authorizes a county to establish a pretrial diversion program for defendants who have been charged with a misdemeanor offense and authorizes other diversion programs, including for defendants with cognitive developmental disabilities, defendants in nonviolent drug cases, and traffic violations.

This bill begin insert , until January 1, 2020, end insert would begin insert establish a pilot program in the County of Los Angeles to end insert authorize a judge in the superior court begin delete of a county that has a specified diversion program to offer that misdemeanor diversion to a defendant over the objection of a prosecuting attorney. The bill also would authorize a judge in the superior court in a county in which a misdemeanor is being prosecuted, if the county does not have a diversion program, and end delete begin insert , end insert at the judge’s discretion begin insert and over the objection of the prosecution end insert , to defer sentencing a defendant who has submitted a plea of guilty or nolo contendere begin insert to a misdemeanor end insert for a period not to exceed 12 months. begin insert The bill would specify certain criteria that would disqualify a defendant from these provisions, including having been previously deferred or the charge including specified crimes. end insert The bill would authorize the judge to order the defendant to comply with terms, conditions, and programs, as specified begin insert , and would require a defendant whose sentence is deferred to complete all conditions ordered by the court, make full restitution, and comply with specified court orders in order to have his or her plea stricken end insert . The bill would require the judge, at the end of the deferral period and if the defendant complies with all terms, conditions, and programs required by the court, to strike the defendant’s plea and dismiss the action against the defendant. The bill would require the court, a probation officer, or the prosecuting attorney to make a motion for entry of judgment, and would require the court to sentence the defendant, if the defendant reoffends or fails to comply with the terms, conditions, or programs ordered by the court.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

SECTION 1.  

Chapter 2.96 (commencing with Section begin delete 1001.95) end delete
begin insert 1001.94) end insert is added to Title 6 of Part 2 of the Penal Code, to read:

 

Chapter  2.96. Deferral of Sentencing begin insert Pilot Program end insert

 

begin delete

1001.95.  

(a) (1) A judge in the superior court of a county that
has established a misdemeanor diversion program pursuant to
Chapter 2.7 (commencing with Section 1001) or Chapter 2.9
(commencing with Section 1001.50) may, at his or her discretion
and over the objection of a prosecuting attorney, offer misdemeanor
diversion to a defendant pursuant to those provisions.

end delete

begin insert

begin insert 1001.94. end insert   

end insert begin insert

(a) There is hereby established in the County of Los
Angeles the Deferral of Sentencing Pilot Program.

end insert begin insert

(b) A judge in the superior court of the County of Los Angeles
may, at his or her discretion and over the objection of a
prosecuting attorney, defer sentencing a defendant who has
submitted a plea of guilty or nolo contendere to a misdemeanor
pursuant to this chapter. Sentencing may be deferred for a period
not to exceed 12 months, and the judge may order the defendant
to comply with terms, conditions, or programs that the judge deems
appropriate based on the defendant’s specific situation.

end insert begin delete

(2)

end delete

begin insert (c) end insert  A defendant may make a motion for imposition of diversion
pursuant to this begin delete subdivision. end delete begin insert section. end insert

begin delete

(b) (1) A judge in the superior court in the county in which a
misdemeanor is being prosecuted that has not established a
misdemeanor diversion program pursuant to Chapter 2.7
(commencing with Section 1001) or Chapter 2.9 (commencing
with Section 1001.50) may, at his or her discretion, defer
sentencing a defendant who has submitted a plea of guilty or nolo
contendere pursuant to this chapter. Sentencing may be deferred
for a period not to exceed 12 months, and the judge may order the
defendant to comply with terms, conditions, or programs that the
judge deems appropriate based on the defendant’s specific
situation.

(2) A defendant may make a motion for deferral of sentencing
pursuant to this subdivision.

end delete begin insert

(d) This chapter shall apply to first-time misdemeanor
defendants, except as provided in Section 1001.98, in order to
reduce the stigma that is often associated with a criminal record
and to increase the likelihood that a defendant will be able to
obtain employment.

end insert begin insert

(e) This chapter shall not be construed to preempt any current
or future diversion programs. Nothing in this chapter is intended
to limit the rights of a victim under Section 28 of Article I of the
California Constitution.

end insert begin insert

(f) It is the intent of the Legislature that no new diversion
programs are created, and that judges shall order a defendant,
for whom judgment is deferred, to complete the same obligations
that would have been imposed had judgment been entered. The
only difference between this chapter and current practice is that
under this chapter judgment will not be entered.

end insert

begin insert

begin insert 1001.95. end insert   

A defendant whose sentence is deferred pursuant to
this chapter shall be required to complete all of the following in
order to have his or her plea stricken:

(a) Complete all conditions ordered by the court.

(b) Make full restitution.

(c) Comply with a court-ordered protective order, stay-away
order, or order prohibiting firearm possession, if applicable.

end insert

1001.96.  

(a) If the defendant, during the period of deferral
imposed pursuant to subdivision begin delete (b) end delete begin insert (a) end insert of Section begin delete 1001.95, end delete
begin insert 1001.94, end insert complies with all terms, conditions, and programs
required by the court, then, the judge shall, at the end of the period,
strike the defendant’s plea and dismiss the action against the
defendant.

(b) Upon successful completion of the terms, conditions, or
programs ordered by the court, the arrest upon which sentencing
was deferred shall be deemed to have never occurred. The
defendant may indicate in response to any question concerning his
or her prior criminal record that he or she was not arrested or
granted deferred entry of judgment for the offense, except as
specified in subdivision (c). 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.

(c) The defendant shall be advised that, regardless of his or her
successful completion of the terms, conditions, or programs ordered
by the court pursuant to this chapter, the arrest upon which the
judgment was deferred may be disclosed by the Department of
Justice in response to a peace officer application request and that,
notwithstanding Section begin delete 1001.95, end delete begin insert 1001.94, end insert this section does not
relieve him or her 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.

1001.97.  

If, during the period of deferral imposed pursuant to
subdivision begin delete (b) end delete begin insert (a) end insert of Section begin delete 1001.95, end delete begin insert 1001.94, end insert the defendant
reoffends or fails to comply with the terms, conditions, or programs
required by the court, then the court, the probation officer, or the
prosecuting attorney shall make a motion for entry of judgment,
and the court shall sentence the defendant as if deferral had not
occurred.

begin insert

begin insert 1001.98. end insert   

Deferral of sentencing shall not be offered when any
of the following conditions are met:

(a) The defendant has been convicted of any misdemeanor in
the previous 10 years, a misdemeanor involving force or violence,
or a felony.

(b) The defendant has previously had his or her sentence
deferred pursuant to this chapter or any other law.

(c) Incarceration is mandatory upon the defendant’s conviction.

(d) The defendant is required to register as a sex offender
pursuant to Section 290.

(e) The magistrate determines that the offense will be prosecuted
as a misdemeanor pursuant to paragraph (5) of subdivision (b) of
Section 17.

(f) The defendant is a partnership, firm, association,
corporation, limited liability company, or other legal entity.

(g) The victim is a person identified in Section 6211 of the
Family Code, a minor, or an elder or dependent adult pursuant
to Section 368.

(h) The charge includes any of the following:

(1) Force or violence against a peace officer.

(2) The unlawful use, possession, sale, or transfer of a
dangerous weapon, firearm, or ammunition.

(3) Violation of Section 23152 or 23153 of the Vehicle Code.

(4) Violation of either subdivision (c) of Section 192 or
subdivision (b) of Section 191.5.

(5) Violation of Section 186.22.

(6) Violation of Section 273.5 or 273.6.

(7) Violation of an environmental or workplace safety crime,
including, but not limited to, subdivision (a) of Section 5650 of the
Fish and Game Code, Section 8670.64 of the Government Code,
Section 25507 of the Health and Safety Code, Section 6423 or
6425 of the Labor Code, Section 387 of this code, or Section 13387
of the Water Code.

end insert begin insert

begin insert 1001.99. end insert   

This chapter shall remain in effect only until January
1, 2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.

end insert