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
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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
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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
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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
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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
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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.
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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