BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2124
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          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