AB 1351, as amended, Eggman. Deferred entry of judgment: pretrial diversion.
(1) Existing
end delete
begin insertExistingend insert law allows individualsbegin delete convicted ofend deletebegin insert charged withend insert specified crimes to qualify for deferred entry of judgment. A defendant qualifies ifbegin delete they haveend deletebegin insert
he or she hasend insert 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a violation that qualifies for the program, the defendant’s record does not indicate that probation or parole has ever been revoked without being completed, and the defendant’s record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted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,begin delete defendants can plead guilty andend deletebegin insert an eligible defendant mayend insert have entry of judgment deferred,begin delete in return forend deletebegin insert
upon pleading guilty to the offenses charged andend insert 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 renderingbegin delete themend deletebegin insert him or herend insert unsuitable for deferred entry of judgment, the defendant’s guilty plea is entered and the courtbegin insert enters judgment andend insert 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
end delete
begin insertThisend insert bill would change the deferred entry of judgment program into a pretrial diversion program. Under the pretrial diversion program created by this bill, a defendantbegin delete qualifies if they haveend deletebegin insert would qualify if he or she hasend insert 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 priorbegin delete felonyend delete conviction for a serious or violentbegin delete felony.end deletebegin insert felony within 5 years prior to the alleged commission of the charged offense.end insert
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 1000 of the Penal Code is amended to
2read:
(a) This chapter shall apply whenever a case is before
4any court upon an accusatory pleading for a violation of Section
511350, 11357, 11364, or 11365, paragraph (2) of subdivision (b)
6of Section 11375, Section 11377, or Section 11550 of the Health
7and Safety Code, or subdivision (b) of Section 23222 of the Vehicle
8Code, or Section 11358 of the Health and Safety Code if the
P3 1marijuana planted, cultivated, harvested, dried, or processed is for
2personal use, or Section 11368 of the Health and Safety Code if
3the narcotic drug was secured by a fictitious prescription and is
4for the personal use of the defendant and was not sold or furnished
5to another, or subdivision (d) of Section 653f if the solicitation
6was for acts directed to personal use only, or
Section 381 or
7subdivision (f) of Section 647 of the Penal Code, if for being under
8
the influence of a controlled substance, or Section 4060 of the
9Business and Professions Code, and it appears to the prosecuting
10attorney that, except as provided in subdivision (b) of Section
1111357 of the Health and Safety Code, all of the following apply
12to the defendant:
13(1) The defendant has no prior conviction for any offense
14involving controlled substances other than the offenses listed in
15this subdivision.
16(2) The offense charged did not involve a crime of violence or
17threatened violence.
18(3) There is no evidence of a violation relating to narcotics or
19restricted dangerous drugs other than a violation of the sections
20listed in this subdivision.
21(4) The defendant has no prior convictionbegin insert within five years prior
22to the alleged commission of the charged offenseend insert for a serious
23felony, as defined in subdivision (c) of Section 1192.7, or a violent
24felony, as defined in subdivision (c) of Section 667.5.
25(b) The prosecuting attorney shall review his or her file to
26determine whether or not paragraphs (1) to (4), inclusive, of
27subdivision (a) apply to the defendant. If the defendant is found
28eligible, the prosecuting attorney shall file with the court a
29declaration in writing or state for the record the grounds upon
30which the determination is based, and shall make this information
31available to the defendant and his or her attorney. This procedure
32is intended to allow the court to set the
hearing for pretrial diversion
33of judgment at the arraignment. If the defendant is found ineligible
34for pretrial diversion, the prosecuting attorney shall file with the
35court a declaration in writing or state for the record the grounds
36upon which the determination is based, and shall make this
37information available to the defendant and his or her attorney. The
38sole remedy of a defendant who is found ineligible for pretrial
39diversion is a postconviction appeal.
P4 1(c) All referrals for pretrial diversion granted by the court
2pursuant to this chapter shall be made only to programs that have
3been certified by the county drug program administrator pursuant
4to Chapter 1.5 (commencing with Section 1211) of Title 8, or to
5programs that provide services at no cost to the participant and
6have been deemed by the court and the county drug program
7
administrator to be credible and effective. The defendant may
8request to be referred to a program in any county, as long as that
9program meets the criteria set forth in this subdivision.
10(d) Pretrial diversion for an alleged violation of Section 11368
11of the Health and Safety Code shall not prohibit any administrative
12agency from taking disciplinary action against a licensee or from
13denying a license. Nothing in this subdivision shall be construed
14to expand or restrict the provisions of Section 1000.4.
15(e) Any defendant who is participating in a program referred to
16in this section may be required to undergo analysis of his or her
17urine for the purpose of testing for the presence of any drug as part
18of the program. However, urine analysis results shall not be
19admissible
as a basis for any new criminal prosecution or
20proceeding.
Section 1000.1 of the Penal Code is amended to read:
(a) If the prosecuting attorney determines that this
23chapter may be applicable to the defendant, he or she shall advise
24the defendant and his or her attorney in writing of that
25determination. This notification shall include all of the following:
26(1) A full description of the procedures for pretrial diversion.
27(2) A general explanation of the roles and authorities of the
28probation department, the prosecuting attorney, the program, and
29the court in the process.
30(3) A clear statement thatbegin delete in lieu of trial,end delete
the court may grant
31pretrial diversion with respect to any crime specified in subdivision
32(a) of Section 1000 that is charged, provided that the defendant
33begin delete waiveend deletebegin insert waivesend insert the right to a speedybegin delete trial andend delete preliminary hearing,
34if applicable, and that upon the defendant’s successful completion
35of a program, as specified in subdivision (c) of Section 1000, the
36positive recommendation of the program authority and the motion
37of the defendant, prosecuting attorney, the court, or the probation
38department, but no sooner than six months and no later than one
39year from the date of the defendant’s referral to the program, the
40court shall
dismiss the charge or charges against the defendant.
P5 1(4) A clear statement that upon any failure of treatment or
2condition under the program, or any circumstance specified in
3Section 1000.3, the prosecuting attorney or the probation
4department or the court on its own may make a motion to the court
5to terminate pretrial diversion and schedule further proceedings
6as otherwise provided in this code.
7(5) An explanation of criminal record retention and disposition
8resulting from participation in the pretrial diversion program and
9the defendant’s rights relative to answering questions about his or
10her arrest andbegin delete deferred entry of judgmentend deletebegin insert
pretrial diversionend insert
11 following successful completion of the program.
12(b) If the defendant consents and waives his or her right to a
13speedy trialbegin delete orend deletebegin insert andend insert a speedy preliminary hearing,begin insert if applicable,end insert the
14court may refer the case to the probation department or the court
15may summarily grant pretrial diversion. When directed by the
16court, the probation department shall make an investigation and
17take into consideration the defendant’s age, employment and
18service records, educational background, community and family
19ties, prior controlled
substance use, treatment history, if any,
20demonstrable motivation, and other mitigating factors in
21determining whether the defendant is a person who would be
22benefited by education, treatment, or rehabilitation. The probation
23department shall also determine which programs the defendant
24would benefit from and which programs would accept the
25defendant. The probation department shall report its findings and
26recommendations to the court. The court shall make the final
27determination regarding education, treatment, or rehabilitation for
28the defendant. If the court determines that it is appropriate, the
29court shall grant pretrial diversion if the defendant waives the right
30to a speedy trial and to a speedy preliminary hearing, if applicable.
31(c) (1) No statement, or any information procured therefrom,
32made by the
defendant to any probation officer or drug treatment
33worker, that is made during the course of any investigation
34conducted by the probation department or treatment program
35pursuant to subdivision (b), and prior to the reporting of the
36probation department’s findings and recommendations to the court,
37shall be admissible in any action or proceeding brought subsequent
38to the investigation.
39(2) No statement, or any information procured therefrom, with
40respect to the specific offense with which the defendant is charged,
P6 1that is made to any probation officer or drug program worker
2subsequent to the granting of pretrial diversion shall be admissible
3in any action or
proceeding.
4(d) A defendant’s participation in pretrial diversion pursuant to
5this chapter shall not constitute a conviction
or an admission of
6guilt for any purpose.
Section 1000.2 of the Penal Code is amended to read:
(a) The court shall hold a hearing and, after
9consideration of any information relevant to its decision, shall
10determine if the defendant consents to further proceedings under
11this chapter and if the defendant should be granted pretrial
12diversion. If
the defendant does not consent to participate in pretrial
13diversion the proceedings shall continue as in any other case.
14(b) At the time that pretrial diversion is granted, any bail bond
15or undertaking, or deposit in lieu thereof, on file by or on behalf
16of the defendant shall be exonerated, and the court shall enter an
17order so directing.
18(c) The period during which pretrial diversion is granted shall
19be for no less than six months nor longer than one year. Progress
20reports shall be filed by the probation department with the court
21as directed by the court.
Section 1000.3 of the Penal Code is amended to read:
(a) If it appears to the prosecuting attorney, the court,
24or the probation department that the defendant is performing
25unsatisfactorily in the assigned program, or that the defendant is
26convicted of an offense that reflects the defendant’s propensity for
27violence, or the defendant is convicted of a felony, the prosecuting
28attorney, the court on its own, or the probation department may
29make a motion for termination from pretrial diversion.
30(b) After notice to the defendant, the court shall hold a hearing
31to determine whether pretrial diversion shall be terminated.
32(c) If the court finds that the defendant is not performing
33satisfactorily in the assigned program, or the court finds that the
34defendant has been convicted of a crime as indicated
in subdivision
35begin delete (b)end deletebegin insert (a)end insert the court shall
reinstate the criminal charge or charges and
36schedule the matter for further proceedings as otherwise provided
37in this code.
38(d) If the defendant has
completed pretrial diversion, at the end
39of that period, the criminal charge or charges shall be dismissed.
P7 1(e) Prior to dismissing the charge or charges or terminating
2pretrial diversion, the court shall consider the defendant’s ability
3to pay and whether the defendant has paid a diversion restitution
4fee pursuant to Section 1001.90, if ordered, and has met his or her
5financial obligation to the program, if any. As provided in Section
61203.1b, the defendant shall reimburse the probation department
7for the reasonable cost of any program investigation or progress
8report filed with the court as directed pursuant to Sections 1000.1
9and 1000.2.
Section 1000.4 of the Penal Code is amended to read:
(a) Any record filed with the Department of Justice
12shall indicate the disposition in those cases referred to pretrial
13diversion pursuant to this chapter. Upon successful completion of
14a pretrial diversion program, the arrest upon which the
defendant
15was diverted shall be deemed to have never occurred. The
16defendant may indicate in response to any question concerning his
17or her prior criminal record that he or she was not arrested or
18granted pretrial diversion for the offense, except as specified in
19subdivision (b). A record pertaining to an arrest resulting in
20successful completion of a pretrial diversion program shall not,
21without the defendant’s consent, be used in any way that could
22result in the denial of any employment, benefit, license, or
23certificate.
24(b) The defendant shall be advised that, regardless of his or her
25successful completion of the pretrial diversion program, the arrest
26upon which pretrial diversion was based may be disclosed by the
27Department of Justice in response to any peace officer application
28request and that, notwithstanding
subdivision (a), this section does
29not relieve him or her of the obligation to disclose the arrest in
30response to any direct question contained in any questionnaire or
31application for a position as a peace officer, as defined in Section
32830.
Section 1000.5 of the Penal Code is amended to read:
(a) The presiding judge of the superior court, or a
35judge designated by the presiding judge, together with the district
36attorney and the public defender, may agree in writing to establish
37and conduct a preguilty plea drug court program pursuant to the
38provisions of this chapter, wherein criminal proceedings are
39suspended without a plea of guilty for designated defendants. The
40drug court program shall include a regimen of graduated sanctions
P8 1and rewards, individual and group therapy, urine analysis testing
2commensurate with treatment needs, close court monitoring and
3supervision of progress, educational or vocational counseling as
4appropriate, and other requirements as agreed to by the presiding
5judge or
his or her designee, the district attorney, and the public
6defender. If there is no agreement in writing for a preguilty plea
7program by the presiding judge or his or her designee, the district
8attorney, and the public defender, the program shall be operated
9as a pretrial diversion program as provided in this chapter.
10(b) The provisions of Section 1000.3 and Section 1000.4
11regarding satisfactory and unsatisfactory performance in a program
12shall apply to preguilty plea programs. If the court finds that (1)
13the defendant is not performing satisfactorily in the assigned
14program, (2) the defendant is not benefiting from education,
15treatment, or rehabilitation, (3) the defendant has been convicted
16of a crime specified in Section 1000.3, or (4) the defendant has
17engaged in criminal conduct rendering him or her unsuitable for
18the preguilty
plea program, the court shall reinstate the criminal
19charge or charges. If the defendant has performed satisfactorily
20during the period of the preguilty plea program, at the end of that
21period, the criminal charge or charges shall be dismissed and the
22provisions of Section 1000.4 shall apply.
Section 1000.6 of the Penal Code is amended to read:
(a) Where a person is participating in a pretrial
25diversion program or a preguilty plea program pursuant to this
26chapter, the person shall be allowed, under the direction of a
27licensed health care practitioner, to use medications including, but
28not limited to, methadone, buprenorphine, or
29levoalphacetylmethadol (LAAM) to treat substance use disorders
30if the
participant allows release of his or her medical records to
31the court presiding over the participant’s preguilty plea or pretrial
32diversion program for the limited purpose of determining whether
33or not the participant is using such medications under the direction
34of a licensed health care practitioner and is in compliance with the
35pretrial diversion or preguilty plea program rules.
36(b) If the conditions specified in subdivision (a) are met, using
37medications to treat substance use disorders shall not be the sole
38reason for exclusion from a pretrial diversion or preguilty plea
39program. A
patient who uses medications to treat substance use
P9 1disorders and participates in a preguilty plea or pretrial diversion
2program shall comply with all court program rules.
3(c) A person who is participating in a pretrial diversion program
4or preguilty plea program pursuant to this chapter who
uses
5medications to treat substance use disorders shall present to the
6court a declaration from their health care practitioner, or their
7health care practitioner’s authorized representative, that the person
8is currently under their care.
9(d) Urinalysis results that only establish that a person described
10in this section has ingested
medication duly prescribed to that
11person by his or her physician or psychiatrist, or medications used
12to treat substance use disorders, shall not be considered a violation
13of the terms of the pretrial diversion or preguilty plea program
14under this chapter.
15(e) Except as provided in subdivisions (a) to (d), inclusive, this
16section shall not be interpreted to amend any provisions governing
17diversion programs.
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