BILL ANALYSIS Ó AB 2124 Page 1 Date of Hearing: April 22, 2014 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 2124 (Lowenthal) - As Amended: March 28, 2014 SUMMARY : Authorizes a judge, at his or her discretion, to defer sentencing a defendant who has submitted a plea of guilty or nolo contendere for a period not to exceed 24 months and to order the defendant to comply with terms, conditions, and programs, as specified. Specifically, this bill : 1)Provides if the defendant, during the period of deferral, 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. 2)States 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 and 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. 3)States that 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. 4)Requires a defendant to 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 (DOJ) in response to any peace officer application request and that, notwithstanding these provisions, he or she is not relieved 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 AB 2124 Page 2 officer. 5)Provides if, during the period of deferral, the defendant reoffends or fails to comply with the terms, conditions, or programs required by the court, then the court shall make a motion for entry of judgment and shall sentence the defendant as if deferral had not occurred. EXISTING LAW : 1)Provides that the entry of judgment may be deferred with respect to a defendant charged with specific controlled substance offenses if they meet specific criteria, including no prior convictions for any offense involving a controlled substance and have had no prior felony convictions within five years. (Pen. Code, §1000.) 2)Provides that upon successful completion of a deferred entry of judgment, the arrest upon which the judgment was deferred shall be deemed to never have occurred. The defendant may in response to any question in regard to his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment, except as specified. (Pen. Code, § 1000.4, subd. (a).) 3)States that a record pertaining to an arrest resulting in successful completion of a deferred entry of judgment program 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. [Pen. Code, § 1000.4 subd. (a).) 4)Requires that a defendant be advised that regardless of his or her successful completion of a deferred entry of judgment program, the arrest upon which the case was based, may be disclosed by the DOJ in response to any peace officer application request, and that the defendant is obligated to disclose the arrest in response to any direct question on the application. (Pen. Code, § 1000.4, subd. (b).) 5)Provides that the district attorney of each county shall review annually any diversion program adopted by the county, and no program shall continue without the approval of the district attorney. No person shall be diverted under a program unless it has been approved by the district attorney. Nothing in this subdivision shall authorize the prosecutor to AB 2124 Page 3 determine whether a particular defendant shall be diverted. (Pen. Code, § 1001.2, subd. (b).) 6)States, notwithstanding any other provision of law, this chapter shall become operative in a county only if the board of supervisors adopts the provisions of this chapter by ordinance. (Pen. Code, § 1001.50, subd. (a).) a) Provides that the district attorney of each county shall review annually any diversion program established pursuant to this chapter, and no program shall continue without the approval of the district attorney. No person shall be diverted under a program unless it has been approved by the district attorney. Nothing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted. (Pen. Code, § 1001.50, subd. (b).) b) Defines "pretrial diversion" as the procedure of postponing prosecution either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication. (Pen. Code, § 1001.50, subd. (c).) 7)States that it is the intent of the Legislature that these provisions of law shall not be construed to preempt other current or future pretrial or precomplaint diversion programs. It is also the intent of the Legislature that current or future posttrial diversion programs not be preempted, except as provided. (Pen. Code, § 1001.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "A prosecutor has the sole discretion to charge a defendant with a crime, and existing misdemeanor diversion programs are largely authorized and administered at the discretion of a prosecuting attorney. However, the court arguably has equal discretion to issue a sentence once a plea has been entered or a verdict rendered. "In line with this precedent, AB 2124 provides courts with explicit authority to defer sentencing of a defendant who has AB 2124 Page 4 pled guilty or "no contest" to a misdemeanor. Upon deferral, a defendant must comply with any terms, conditions or programs required by the court. Defendants who successfully fulfill all court mandated obligations would have their plea and the action against them stricken from the record. Defendants who fail to comply would be sentenced as if deferral had not occurred. "AB 2124 has the potential to spare appropriately selected offenders the stigma of a criminal record. Like diversion programs, alternative sentencing as provided for in AB 2124 can save state and local governments substantial sums of money and help free up jurors from having to serve on comparatively inconsequential trials." 2)Deferred Entry of Judgment (DEJ) Programs : Under existing law, a defendant charged with violations of certain specified drug and child abuse crimes may be eligible to participate in a DEJ program if he or she meets specified criteria. (Pen. Code, §§ 1000. 1000.6, 1000.12.) With DEJ, entry of judgment on the defendant's guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with the conditions imposed by the court, criminal proceedings resume and the defendant, having already pleaded guilty, is sentenced. Diversion on the other hand suspends the criminal proceedings without requiring the defendant to enter a plea. Diversion may also require the defendant to successfully complete a program and other conditions imposed by the court. Unlike DEJ however, if a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed to trial or enter a plea. Some superior courts voluntarily offer DEJ programs for certain misdemeanor offenses. These programs may cover a variety of issues such as theft or anger management, and are provided by companies that contract with the counties. Generally, eligibility for these programs require that the defendant have no prior convictions and require the defendant to comply with specified conditions, including completion of a class or program, within a designated period of time. Typically, the district attorney determines who is eligible for diversion or AB 2124 Page 5 DEJ and may be offered to defendants during plea negotiations. AB 2124 does not take away the district attorney's current authority to offer DEJ or diversion to defendants. This bill provides courts with the authority to exercise its discretion to refrain from entering judgment after a defendant pleads guilty. Arguably, such authority falls within the court's sentencing function and power. 3)Argument in Support : The Conference of California Bar Associations writes, "Existing law authorizes each county to create misdemeanor diversion programs and provides a general framework for their operation, but there is no requirement that counties establish such programs. Consequently, misdemeanor diversion is available in some counties but not others, leading to sometimes radically different sentences for defendants committing similar crimes in counties literally just across the street from one another. For example, a first offense for shoplifting in San Francisco will result in diversion, but the same offenses committed across the road in San Mateo County results in conviction with possible penalties of fine and imprisonment. "Although the disparity has been held not to violate equal protection or the separation of powers (see, e.g., Davis v. Municipal Court (1988) 46 Cal.3d 64), fairness requires the equal and consistent application of diversion throughout the state. So does fiscal good sense, since diversion programs have been shown to substantially reduce costs in the longer term. According to the National Association of Counties, 'Effective jail diversion strategies allow opportunities for people to avoid further involvement in the criminal justice system,' with the clear understanding that the less involvement with the criminal justice system, the less cost. Increased misdemeanor diversion would also reduce pressures on California's jails, an important consideration in the wake of realignment." 4)Argument in Opposition : The California District Attorneys Association argues, "Current law allows district attorneys to operate diversion programs at their discretion. The decision to use this type of dispositional alternative is best placed with the district attorney and this bill would eliminate his or her discretion in that regard, vesting it instead with AB 2124 Page 6 individual judges. "Additionally, under current law, county entities determine whether or not a county should have a diversion program and how such a program should be constituted. Such an arrangement ensures uniformity within the county, allows counties to determine whether programs are producing positive results, and encourages prosecutors to refer defendants to the programs that best fit the needs of the defendants and the community. AB 2124 appears to erode this policy by allowing individual judges to construct their own programs without any additional oversight." 5)Current Legislation : AB 2309 (Brown) adds specified prescription medications to the list of crimes related to the unlawful possession of a controlled substance for which entry of judgment may be deferred if the defendant meets specified criteria, including no prior convictions for any offense involving a controlled substance, and no prior felony convictions within five years. AB 2309 is pending a vote on the Assembly Floor. 6)Prior Legislation : a) AB 994 (Lowenthal), of the 2013-14 Legislative Session, would have required each county to establish a pretrial diversion program, administered by the district attorney of the county. AB 994 was vetoed. b) SB 513 (Hancock), Chapter 798, Statutes of 2013, provides that in any case where a person is arrested and successfully completes a pre-filing diversion program administered by a prosecuting attorney in lieu of filing an accusatory pleading, the person may petition the superior court that would have had jurisdiction over the matter for an order to seal the records of the arresting agency and related court files and records, and the court may issue that order if the court finds that doing so will be in furtherance of justice. c) AB 1956 (Wolk), Chapter 290, Statutes of 2004, expanded the application of the existing statute authorizing diversion for mentally ill defendants in certain misdemeanor cases to apply to persons with a cognitive developmental disability. AB 2124 Page 7 d) SB 599 (Perata), Chapter 792, Statutes of 2003, authorizes a court to order the sealing of records of the arresting agency and related court files with respect to a person diverted pursuant to a drug diversion program or admitted to a deferred entry of judgment program for specified drug offenders. REGISTERED SUPPORT / OPPOSITION : Support American Probation and Parole Association California Attorneys for Criminal Justice Californians for Safety and Justice Conference of California Bar Associations Pacific Educational Services, Inc. Taxpayers for Improving Public Safety Opposition California District Attorneys Association Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744