BILL NUMBER: AB 1351	INTRODUCED
	BILL TEXT


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parole has ever been revoked without being completed, and the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  prior  conviction for any
offense involving controlled substances  prior to the alleged
commission of the charged offense.   other than the
offenses listed in this subdivision. 
   (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. 
   (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) 
    (4)  The defendant has no prior  felony
 conviction  within five years prior to the alleged
commission of the charged offense.   for a serious
felony, as defined in subdivision (c) of   Section 1192.7,
or a violent felony, as defined in subdivision (c) of Section 667.5.

   (b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to  (6), 
 (4),  inclusive, of subdivision (a) apply to the defendant.
 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.  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
 deferred entry   pretrial diversion  of
judgment at the arraignment. If the defendant is found ineligible for
 deferred entry of judgment,   pretrial
diversion,  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  deferred entry of
judgment   pretrial diversion  is a postconviction
appeal.
   (c) All referrals for  deferred entry of judgment
  pretrial diversion  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)  Deferred entry of judgment   Pretrial
diversion  for  a   an alleged 
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  deferred
entry of judgment.   pretrial diversion. 
   (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
 deferred entry of judgment   pretrial diversion
 with respect to any crime specified in subdivision (a) of
Section 1000 that is charged, provided that the defendant 
pleads guilty to each of these charges and waives time for the
pronouncement of judgment,   waive the right to a speedy
trial and preliminary hearing, if applicable,  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  defendant, 
prosecuting attorney, the court, or the probation department, but no
sooner than  18   six  months and no later
than  three years   one year  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  for entry of
judgment and the court shall render a finding of guilt to the charge
or charges pled, enter judgment,   to terminate
pretrial diversion  and schedule  a sentencing hearing
  further proceedings  as otherwise provided in
this code.
   (5) An explanation of criminal record retention and disposition
resulting from participation in the  deferred entry of
judgment   pretrial diversion  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
 deferred entry of judgment if the defendant pleads guilty to
the charge or charges and waives time for the pronouncement of
judgment.   pretrial diversion.  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  deferred entry of judgment 
 pretrial diversion  if the defendant  pleads guilty
to the charge or charges and waives time for the pronouncement of
judgment.   waives the right to a speedy trial 
 and to a speedy preliminary hearing, if applicable. 
   (c)  (1)    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. 
   No 
    (2)     No  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 
deferred entry of judgment,   pretrial diversion 
shall be admissible in any action or  proceeding, including a
sentencing hearing.   proceeding. 
   (d) A defendant's  plea of guilty  
participation in pretrial diversion  pursuant to this chapter
shall not constitute a conviction  or an admission of guilt 
for any  purpose unless a judgment of guilty is entered
pursuant to Section 1000.3.   purpose. 
  SEC. 3.  Section 1000.2 of the Penal Code is amended to read:
   1000.2.   (a)    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 
deferred entry of judgment.   pretrial diversion. 
If  the court does not deem the defendant a person who would
be benefited by deferred entry of judgment, or if  the
defendant does not consent to  participate,  
participate in pretrial diversion  the proceedings shall
continue as in any other case. 
   At 
    (b)     At  the time that 
deferred entry of judgment   pretrial diversion  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. 
   The 
    (c)     The  period during which
 deferred entry of judgment   pretrial diversion
 is granted shall be for no less than  18 
 six  months nor longer than  three years. 
 one year.  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.   (a)    If it appears to the
prosecuting attorney, the court, or the probation department that the
defendant is performing unsatisfactorily in the assigned program,
 or that the defendant is not benefiting from education,
treatment, or rehabilitation,  or that the defendant is
convicted of  a misdemeanor   an offense 
that reflects the defendant's propensity for violence, or the
defendant is convicted of a felony,  or the defendant has
engaged in criminal conduct rendering him or her unsuitable for
deferred entry of judgment,  the prosecuting attorney, the
court on its own, or the probation department may make a motion for
 entry of judgment.   termination from pretrial
diversion.  
   After 
    (b)     After  notice to the
defendant, the court shall hold a hearing to determine whether
 judgment should be entered.   pretrial
diversion shall be terminated.  
   If 
    (c)     If  the court finds that the
defendant is not performing satisfactorily in the assigned program,
 or that the defendant is not benefiting from education,
treatment, or rehabilitation,  or the court finds that the
defendant has been convicted of a crime as indicated  above,
or that the defendant has engaged in criminal conduct rendering him
or her unsuitable for deferred entry of judgment,   in
subdivision (b)  the court shall  render a finding of
guilt to the charge or charges pled, enter judgment, 
reinstate the criminal charge or charges  and schedule 
a sentencing hearing   the matter for further
proceedings  as otherwise provided in this code. 
   If 
    (d)     If  the defendant has 
performed satisfactorily during the period in which deferred entry
of judgment was granted,   completed pretrial diversion,
 at the end of that period, the criminal charge or charges
shall be dismissed. 
   Prior 
    (e)     Prior  to dismissing the
charge or charges or  rendering a finding of guilt and
entering judgment,   terminating pretrial diversion,
 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  deferred 
 referred to pretrial diversion  pursuant to this chapter.
Upon successful completion of a  deferred entry of judgment
  pretrial diversion  program, the arrest upon
which the  judgment was deferred   defendant was
diverted  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   pretrial diversion 
for the offense, except as specified in subdivision (b). A record
pertaining to an arrest resulting in successful completion of a
 deferred entry of judgment   pretrial diversion
 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  deferred entry of judgment
  pretrial diversion  program, the arrest upon
which  the judgment was deferred   pretrial
diversion was based  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
 deferred entry of judgment   pretrial
diversion  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 
deferred entry of judgment   pretrial diversion 
program or a preguilty plea program pursuant to this chapter, the
person  may also participate in a licensed methadone
  shall be allowed, under the direction of a licensed
health care practitioner, to use medications including, but not
limited to, methadone, buprenorphine,  or levoalphacetylmethadol
(LAAM)  program   to treat substance use
disorders  if the  following conditions are met:
 
   (1) The sheriff allows a methadone program to operate in the
county jail. 
    (2)     The 
participant allows release of his or her medical records to the court
presiding over the participant's preguilty  plea  or
 deferred entry   pretrial diversion 
program for the limited purpose of determining whether or not the
participant is  duly enrolled in the licensed methadone or
LAAM program   using such medications under the
direction of a licensed health care practitioner  and is in
compliance with  deferred entry  the pretrial
diversion  or preguilty plea program rules.
   (b) If the conditions specified in  paragraphs (1) and (2)
of  subdivision (a) are met, participation in a
methadone or LAAM treatment program   using medications
to treat substance use disorders  shall not be the sole reason
for exclusion from a  deferred entry   pretrial
diversion  or preguilty plea program. A  methadone or
LAAM  patient who  uses medications to treat substance
use disorders and  participates in a preguilty  plea 
or  deferred entry   pretrial diversion 
program shall comply with all court program rules.
   (c) A person who is participating in a  deferred entry of
judgment   pretrial diversion  program or preguilty
plea program pursuant to this chapter who  participates in a
licensed methadone or LAAM program   uses medications
to treat substance use disorders  shall present to the court a
declaration from  the director of the methadone or LAAM
program, or the director's   their health care
practitioner, or their health care practitioner's  authorized
representative, that the person is currently  enrolled and in
good standing in the program.   under their care. 

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