California Legislature—2015–16 Regular Session

Assembly Bill No. 1351

Introduced by Assembly Member Eggman

February 27, 2015

An act to amend Sections 1000, 1000.1, 1000.2, 1000.3, 1000.4, 1000.5, and 1000.6 of the Penal Code, relating to deferred entry of judgment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1351, as introduced, Eggman. Deferred entry of judgment: pretrial diversion.

(1) Existing law allows individuals convicted of specified crimes to qualify for deferred entry of judgment. A defendant qualifies if they have no conviction for any offense involving controlled substances, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, the defendant’s record does not indicate that probation or parole has ever been revoked without being completed, and the defendant’s record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years prior to the alleged commission of the charged offense.

Under the existing deferred entry of judgment program, defendants can plead guilty and have entry of judgment deferred, in return for entering a drug treatment program for 18 months to 3 years. If the defendant does not perform satisfactorily in the program, does not benefit from the program, is convicted of specified crimes, or engages in criminal activity rendering them unsuitable for deferred entry of judgment, the defendant’s guilty plea is entered and the court proceeds to schedule a sentencing hearing. If the defendant completes the program, the criminal charges are dismissed. Existing law allows the presiding judge of the superior court, with the district attorney and public defender, to establish a pretrial diversion drug program.

(2) This bill would change the deferred entry of judgment program into a pretrial diversion program. Under the pretrial diversion program created by this bill, a defendant qualifies if they have no prior conviction for any offense involving controlled substances other than the offenses that qualify for diversion, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program and the defendant has no prior felony conviction for a serious or violent felony.

Under the pretrial diversion program created by this bill, a qualifying defendant would not enter a guilty plea, but instead would suspend the proceedings in order to enter a drug treatment program for 6 months to one year. If the defendant does not perform satisfactorily in the program or is convicted of specified crimes, the court would terminate the program and the criminal proceedings would be reinstated. If the defendant completes the program, the criminal charges would be dismissed.

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.  

Section 1000 of the Penal Code is amended to
read:

1000.  

(a) This chapter shall apply whenever a case is before
any court upon an accusatory pleading for a violation of Section
11350, 11357, 11364, or 11365, paragraph (2) of subdivision (b)
of Section 11375, Section 11377, or Section 11550 of the Health
and Safety Code, or subdivision (b) of Section 23222 of the Vehicle
Code, or Section 11358 of the Health and Safety Code if the
marijuana planted, cultivated, harvested, dried, or processed is for
personal use, or Section 11368 of the Health and Safety Code if
the narcotic drug was secured by a fictitious prescription and is
for the personal use of the defendant and was not sold or furnished
to another, or subdivision (d) of Section 653f if the solicitation
was for acts directed to personal use only, or Section 381 or
subdivision (f) of Section 647 of the Penal Code, if for being under
the influence of a controlled substance, or Section 4060 of the
Business and Professions Code, and it appears to the prosecuting
attorney that, except as provided in subdivision (b) of Section
11357 of the Health and Safety Code, all of the following apply
to the defendant:

(1) The defendant has no begin insert prior end insert conviction for any offense
involving controlled substances begin delete prior to the alleged commission
of the charged offense. end delete begin insert other than the offenses listed in this
subdivision. end insert

(2) The offense charged did not involve a crime of violence or
threatened violence.

(3) There is no evidence of a violation relating to narcotics or
restricted dangerous drugs other than a violation of the sections
listed in this subdivision.

begin delete

(4) The defendant’s record does not indicate that probation or
parole has ever been revoked without thereafter being completed.

(5) The defendant’s record does not indicate that he or she has
successfully completed or been terminated from diversion or
deferred entry of judgment pursuant to this chapter within five
years prior to the alleged commission of the charged offense.

(6)

end delete

begin insert (4) end insert  The defendant has no prior begin delete felony end delete conviction begin delete within five
years prior to the alleged commission of the charged offense. end delete begin insert for
a serious felony, as defined in subdivision (c) of end insert begin insert Section 1192.7,
or a violent felony, as defined in subdivision (c) of Section 667.5. end insert

(b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to begin delete (6), end delete begin insert (4), end insert inclusive, of
subdivision (a) apply to the defendant. begin delete Upon the agreement of the
prosecuting attorney, law enforcement, the public defender, and
the presiding judge of the criminal division of the superior court,
or a judge designated by the presiding judge, this procedure shall
be completed as soon as possible after the initial filing of the
charges. end delete If the defendant is found eligible, the prosecuting attorney
shall file with the court a declaration in writing or 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 begin delete deferred entry end delete begin insert pretrial diversion end insert of judgment at the
arraignment. If the defendant is found ineligible for begin delete deferred entry
of judgment, end delete begin insert pretrial diversion, end insert the prosecuting attorney shall file
with the court a declaration in writing or 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 begin delete deferred
entry of judgment end delete begin insert pretrial diversion end insert is a postconviction appeal.

(c) All referrals for begin delete deferred entry of judgment end delete begin insert pretrial diversion end insert
granted by the court pursuant to this chapter shall be made only
to programs that have been certified by the county drug program
administrator pursuant to Chapter 1.5 (commencing with Section
1211) of Title 8, or to programs that provide services at no cost to
the participant and have been deemed by the court and the county
drug program administrator to be credible and effective. The
defendant may request to be referred to a program in any county,
as long as that program meets the criteria set forth in this
subdivision.

(d)  begin delete Deferred entry of judgment end delete begin insert Pretrial diversion end insert for begin delete a end delete begin insert an
alleged end insert violation of Section 11368 of the Health and Safety Code
shall not prohibit any administrative agency from taking
disciplinary action against a licensee or from denying a license.
Nothing in this subdivision shall be construed to expand or restrict
the provisions of Section 1000.4.

(e) Any defendant who is participating in a program referred to
in this section may be required to undergo analysis of his or her
urine for the purpose of testing for the presence of any drug as part
of the program. However, urine analysis results shall not be
admissible as a basis for any new criminal prosecution or
proceeding.

SEC. 2.  

Section 1000.1 of the Penal Code is amended to read:

1000.1.  

(a) If the prosecuting attorney determines that this
chapter 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 all of the following:

(1) A full description of the procedures for begin delete deferred entry of
judgment. end delete begin insert pretrial diversion. end insert

(2) A general explanation of the roles and authorities of the
probation department, the prosecuting attorney, the program, and
the court in the process.

(3) A clear statement that in lieu of trial, the court may grant begin delete deferred entry of judgment end delete begin insert pretrial diversion end insert with respect to any
crime specified in subdivision (a) of Section 1000 that is charged,
provided that the defendant begin delete pleads guilty to each of these charges
and waives time for the pronouncement of judgment, end delete begin insert waive the
right to a speedy trial and preliminary hearing, if applicable, end insert and
that upon the defendant’s successful completion of a program, as
specified in subdivision (c) of Section 1000, the positive
recommendation of the program authority and the motion of the
begin insert defendant, end insert prosecuting attorney, the court, or the probation
department, but no sooner than begin delete 18 end delete begin insert six end insert months and no later than
begin delete three years end delete begin insert one year end insert from the date of the defendant’s referral to
the program, the court shall dismiss the charge or charges against
the defendant.

(4) A clear statement that upon any failure of treatment or
condition under the program, or any circumstance specified in
Section 1000.3, the prosecuting attorney or the probation
department or the court on its own may make a motion to the court begin delete for entry of judgment and the court shall render a finding of guilt
to the charge or charges pled, enter judgment, end delete begin insert to terminate pretrial
diversion end insert and schedule begin delete a sentencing hearing end delete begin insert further proceedings end insert
as otherwise provided in this code.

(5) An explanation of criminal record retention and disposition
resulting from participation in the begin delete deferred entry of judgment end delete
begin insert pretrial diversion end insert 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 defendant consents and waives his or her right to a
speedy trial or a speedy preliminary hearing, the court may refer
the case to the probation department or the court may summarily
grant begin delete deferred entry of judgment if the defendant pleads guilty to
the charge or charges and waives time for the pronouncement of
judgment. end delete begin insert pretrial diversion. end insert When directed by the court, the
probation department shall make an investigation and take into
consideration the defendant’s age, employment and service records,
educational background, community and family ties, prior
controlled substance use, treatment history, if any, demonstrable
motivation, and other mitigating factors in determining whether
the defendant is a person who would be benefited by education,
treatment, or rehabilitation. The probation department shall also
determine which programs the defendant would benefit from and
which programs would accept the defendant. The probation
department shall report its findings and recommendations to the
court. The court shall make the final determination regarding
education, treatment, or rehabilitation for the defendant. If the
court determines that it is appropriate, the court shall grant begin delete deferred
entry of judgment end delete begin insert pretrial diversion end insert if the defendant begin delete pleads guilty
to the charge or charges and waives time for the pronouncement
of judgment. end delete begin insert waives the right to a speedy trial and to a speedy
preliminary hearing, if applicable. end insert

(c)  begin insert (1) end insert begin insert   end insert No statement, or any information procured therefrom,
made by the defendant to any probation officer or drug treatment
worker, that is made during the course of any investigation
conducted by the probation department or treatment program
pursuant to subdivision (b), and prior to the reporting of the
probation department’s findings and recommendations to the court,
shall be admissible in any action or proceeding brought subsequent
to the investigation.

begin delete

No

end delete

begin insert (2) end insert begin insert   end insert begin insert No end insert statement, or any information procured therefrom, with
respect to the specific offense with which the defendant is charged,
that is made to any probation officer or drug program worker
subsequent to the granting of begin delete deferred entry of judgment, end delete begin insert pretrial
diversion end insert shall be admissible in any action or begin delete proceeding, including
a sentencing hearing. end delete begin insert proceeding. end insert

(d) A defendant’s begin delete plea of guilty end delete begin insert participation in pretrial
diversion end insert pursuant to this chapter shall not constitute a conviction
begin insert or an admission of guilt end insert for any begin delete purpose unless a judgment of
guilty is entered pursuant to Section 1000.3. end delete begin insert purpose. end insert

SEC. 3.  

Section 1000.2 of the Penal Code is amended to read:

1000.2.  

begin insert (a) end insert begin insert   end insert The court shall hold a hearing and, after
consideration of any information relevant to its decision, shall
determine if the defendant consents to further proceedings under
this chapter and if the defendant should be granted begin delete deferred entry
of judgment. end delete begin insert pretrial diversion. end insert If begin delete the court does not deem the
defendant a person who would be benefited by deferred entry of
judgment, or if end delete the defendant does not consent to begin delete participate, end delete
begin insert participate in pretrial diversion end insert the proceedings shall continue as
in any other case.

begin delete

At

end delete

begin insert (b) end insert begin insert   end insert begin insert At end insert the time that begin delete deferred entry of judgment end delete begin insert pretrial diversion end insert
is granted, any bail bond or undertaking, or deposit in lieu thereof,
on file by or on behalf of the defendant shall be exonerated, and
the court shall enter an order so directing.

begin delete

The

end delete

begin insert (c) end insert begin insert   end insert begin insert The end insert period during which begin delete deferred entry of judgment end delete begin insert pretrial
diversion end insert is granted shall be for no less than begin delete 18 end delete begin insert six end insert months nor
longer than begin delete three years. end delete begin insert one year. end insert Progress reports shall be filed
by the probation department with the court as directed by the court.

SEC. 4.  

Section 1000.3 of the Penal Code is amended to read:

1000.3.  

begin insert (a) end insert begin insert   end insert If it appears to the prosecuting attorney, the court,
or the probation department that the defendant is performing
unsatisfactorily in the assigned program, begin delete or that the defendant is
not benefiting from education, treatment, or rehabilitation, end delete or that
the defendant is convicted of begin delete a misdemeanor end delete begin insert an offense end insert that reflects
the defendant’s propensity for violence, or the defendant is
convicted of a felony, begin delete or the defendant has engaged in criminal
conduct rendering him or her unsuitable for deferred entry of
judgment, end delete the prosecuting attorney, the court on its own, or the
probation department may make a motion for begin delete entry of judgment. end delete
begin insert termination from pretrial diversion. end insert

begin delete

After

end delete

begin insert (b) end insert begin insert   end insert begin insert After end insert notice to the defendant, the court shall hold a hearing
to determine whether begin delete judgment should be entered. end delete begin insert pretrial
diversion shall be terminated. end insert

begin delete

If

end delete

begin insert (c) end insert begin insert   end insert begin insert If end insert the court finds that the defendant is not performing
satisfactorily in the assigned program, begin delete or that the defendant is not
benefiting from education, treatment, or rehabilitation, end delete or the court
finds that the defendant has been convicted of a crime as indicated
begin delete above, or that the defendant has engaged in criminal conduct
rendering him or her unsuitable for deferred entry of judgment, end delete begin insert in
subdivision (b) end insert the court shall begin delete render a finding of guilt to the charge
or charges pled, enter judgment, end delete begin insert reinstate the criminal charge or
charges end insert and schedule begin delete a sentencing hearing end delete begin insert the matter for further
proceedings end insert as otherwise provided in this code.

begin delete

If

end delete

begin insert (d) end insert begin insert   end insert begin insert If end insert the defendant has begin delete performed satisfactorily during the
period in which deferred entry of judgment was granted, end delete begin insert completed
pretrial diversion, end insert at the end of that period, the criminal charge or
charges shall be dismissed.

begin delete

Prior

end delete

begin insert (e) end insert begin insert   end insert begin insert Prior end insert to dismissing the charge or charges or begin delete rendering a
finding of guilt and entering judgment, end delete begin insert terminating pretrial
diversion, end insert the court shall consider the defendant’s ability to pay
and whether the defendant has paid a diversion restitution fee
pursuant to Section 1001.90, if ordered, and has met his or her
financial obligation to the program, if any. As provided in Section
1203.1b, the defendant shall reimburse the probation department
for the reasonable cost of any program investigation or progress
report filed with the court as directed pursuant to Sections 1000.1
and 1000.2.

SEC. 5.  

Section 1000.4 of the Penal Code is amended to read:

1000.4.  

(a) Any record filed with the Department of Justice
shall indicate the disposition in those cases begin delete deferred end delete begin insert referred to
pretrial diversion end insert pursuant to this chapter. Upon successful
completion of a begin delete deferred entry of judgment end delete begin insert pretrial diversion end insert
program, the arrest upon which the begin delete judgment was deferred end delete
begin insert defendant was diverted end insert 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 begin delete deferred entry of judgment end delete begin insert pretrial diversion end insert for the
offense, except as specified in subdivision (b). A record pertaining
to an arrest resulting in successful completion of a begin delete deferred entry
of judgment end delete begin insert pretrial diversion end insert 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.

(b) The defendant shall be advised that, regardless of his or her
successful completion of the begin delete deferred entry of judgment end delete begin insert pretrial
diversion end insert program, the arrest upon which begin delete the judgment was
deferred end delete begin insert pretrial diversion was based end insert may 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 him or her 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.

SEC. 6.  

Section 1000.5 of the Penal Code is amended to read:

1000.5.  

(a) The presiding judge of the superior court, or a
judge designated by the presiding judge, together with the district
attorney and the public defender, may agree in writing to establish
and conduct a preguilty plea drug court program pursuant to the
provisions of this chapter, wherein criminal proceedings are
suspended without a plea of guilty for designated defendants. The
drug court program shall include a regimen of graduated sanctions
and rewards, individual and group therapy, urine analysis testing
commensurate with treatment needs, close court monitoring and
supervision of progress, educational or vocational counseling as
appropriate, and other requirements as agreed to by the presiding
judge or his or her designee, the district attorney, and the public
defender. If there is no agreement in writing for a preguilty plea
program by the presiding judge or his or her designee, the district
attorney, and the public defender, the program shall be operated
as a begin delete deferred entry of judgment end delete begin insert pretrial diversion end insert program as
provided in this chapter.

(b) The provisions of Section 1000.3 and Section 1000.4
regarding satisfactory and unsatisfactory performance in a program
shall apply to preguilty plea programs. If the court finds that (1)
the defendant is not performing satisfactorily in the assigned
program, (2) the defendant is not benefiting from education,
treatment, or rehabilitation, (3) the defendant has been convicted
of a crime specified in Section 1000.3, or (4) the defendant has
engaged in criminal conduct rendering him or her unsuitable for
the preguilty plea program, the court shall reinstate the criminal
charge or charges. If the defendant has performed satisfactorily
during the period of the preguilty plea program, at the end of that
period, the criminal charge or charges shall be dismissed and the
provisions of Section 1000.4 shall apply.

SEC. 7.  

Section 1000.6 of the Penal Code is amended to read:

1000.6.  

(a) Where a person is participating in a begin delete deferred entry
of judgment end delete begin insert pretrial diversion end insert program or a preguilty plea program
pursuant to this chapter, the person begin delete may also participate in a
licensed methadone end delete begin insert shall be allowed, under the direction of a
licensed health care practitioner, to use medications including,
but not limited to, methadone, buprenorphine, end insert or
levoalphacetylmethadol (LAAM) begin delete program end delete begin insert to treat substance use
disorders end insert if the begin delete following conditions are met: end delete

begin delete

(1) The sheriff allows a methadone program to operate in the
county jail.

end delete

begin delete (2) end delete begin delete   end delete begin delete The end delete participant allows release of his or her medical records
to the court presiding over the participant’s preguilty begin insert plea end insert or
begin delete deferred entry end delete begin insert pretrial diversion end insert program for the limited purpose
of determining whether or not the participant is begin delete duly enrolled in
the licensed methadone or LAAM program end delete begin insert using such medications
under the direction of a licensed health care practitioner end insert and is
in compliance with begin delete deferred entry end delete begin insert the pretrial diversion end insert or preguilty
plea program rules.

(b) If the conditions specified in begin delete paragraphs (1) and (2) of end delete
subdivision (a) are met, begin delete participation in a methadone or LAAM
treatment program end delete begin insert using medications to treat substance use
disorders end insert shall not be the sole reason for exclusion from a begin delete deferred
entry end delete begin insert pretrial diversion end insert or preguilty plea program. A begin delete methadone
or LAAM end delete patient who begin insert uses medications to treat substance use
disorders and end insert participates in a preguilty begin insert plea end insert or begin delete deferred entry end delete
begin insert pretrial diversion end insert program shall comply with all court program
rules.

(c) A person who is participating in a begin delete deferred entry of judgment end delete
begin insert pretrial diversion end insert program or preguilty plea program pursuant to
this chapter who begin delete participates in a licensed methadone or LAAM
program end delete begin insert uses medications to treat substance use disorders end insert shall
present to the court a declaration from begin delete the director of the methadone
or LAAM program, or the director’s end delete begin insert their health care practitioner,
or their health care practitioner’s end insert authorized representative, that
the person is currently begin delete enrolled and in good standing in the
program. end delete begin insert under their care. end insert

(d) Urinalysis results that only establish that a person described
in this section has ingested begin delete or taken the methadone administered
or prescribed by a licensed methadone or LAAM program end delete
begin insert medication duly prescribed to that person by his or her physician
or psychiatrist, or medications used to treat substance use
disorders, end insert shall not be considered a violation of the terms of the
begin delete deferred entry of judgment end delete begin insert pretrial diversion end insert 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
begin delete deferred entry and end delete diversion programs.