Amended in Assembly June 1, 2015

Amended in Assembly April 16, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1351


Introduced by Assembly Member Eggman

begin insert

(Coauthor: Senator Hall)

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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 amended, Eggman. Deferred entry of judgment: pretrial diversion.

Existing law allows individuals charged with specified crimes to qualify for deferred entry of judgment. A defendant qualifies if he or she has 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a violation that qualifies for the program, the defendant’s record does not indicate that probation or parole has ever been revoked without being completed, and the defendant’s record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted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, an eligible defendant may have entry of judgment deferred, upon pleading guilty to the offenses charged and 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 him or her unsuitable for deferred entry of judgment, the defendant’s guilty plea is entered and the court enters judgment and 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.

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 would qualify if he or she has 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 conviction for a serious or violent felony within 5 years prior to the alleged commission of the charged offense.

Under the pretrial diversion program created by this bill, a qualifying defendant wouldbegin delete not enter a guilty plea, but insteadend deletebegin insert enter a not guilty plea, andend insert would suspend the proceedings in order to enter a drug treatment program for 6 months to onebegin delete year.end deletebegin insert year, or longer if requested by the defendant with good cause.end insert 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:

P2    1

SECTION 1.  

Section 1000 of the Penal Code is amended to
2read:

3

1000.  

(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
P3    1Code, or Section 11358 of the Health and Safety Code if the
2marijuana planted, cultivated, harvested, dried, or processed is for
3personal use, or Section 11368 of the Health and Safety Code if
4the narcotic drug was secured by a fictitious prescription and is
5for the personal use of the defendant and was not sold or furnished
6to another, or subdivision (d) of Section 653f if the solicitation
7was for acts directed to personal use only, or Section 381 or
8subdivision (f) of Section 647 of the Penal Code, if for being under
9 the influence of a controlled substance, or Section 4060 of the
10Business and Professions Code, and it appears to the prosecuting
11attorney that, except as provided in subdivision (b) of Section
1211357 of the Health and Safety Code, all of the following apply
13to the defendant:

14(1) The defendant has no prior conviction for any offense
15involving controlled substances other than the offenses listed in
16this subdivision.

17(2) The offense charged did not involve a crime of violence or
18threatened violence.

19(3) There is no evidence of a violation relating to narcotics or
20restricted dangerous drugs other than a violation of the sections
21listed in this subdivision.

22(4) The defendant has no prior conviction within five years prior
23to the alleged commission of the charged offense for a serious
24felony, as defined in subdivision (c) of Section 1192.7, or a violent
25felony, as defined in subdivision (c) of Section 667.5.

26(b) The prosecuting attorney shall review his or her file to
27determine whether or not paragraphs (1) to (4), inclusive, of
28subdivision (a) apply to the defendant. If the defendant is found
29eligible, the prosecuting attorney shall file with the court a
30declaration in writing or state for the record the grounds upon
31which the determination is based, and shall make this information
32available to the defendant and his or her attorney. This procedure
33is intended to allow the court to set the hearing for pretrial diversion
34of judgment at the arraignment. If the defendant is found ineligible
35for pretrial diversion, the prosecuting attorney shall file with the
36court a declaration in writing or state for the record the grounds
37upon which the determination is based, and shall make this
38information available to the defendant and his or her attorney. The
39sole remedy of a defendant who is found ineligible for pretrial
40diversion 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,begin delete urine analysisend deletebegin insert urinalysisend insert results shall
19not be admissible as a basis for any new criminal prosecution or
20proceeding.

21

SEC. 2.  

Section 1000.1 of the Penal Code is amended to read:

22

1000.1.  

(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 that the court may grant pretrial diversion
31with respect to any crime specified in subdivision (a) of Section
321000 that is charged, provided that the defendantbegin insert pleads not guilty
33to the charge or charges,end insert
waives the right to a speedy preliminary
34hearing, if applicable, and that upon the defendant’s successful
35completion of a program, as specified in subdivision (c) of Section
361000, the positive recommendation of the program authority and
37the motion of the defendant, prosecuting attorney, the court, or the
38probation department, but no sooner than six months and no later
39than one year from the date of the defendant’s referral to the
P5    1program, the court shall dismiss the charge or charges against the
2defendant.

3(4) A clear statement that upon any failure of treatment or
4condition under the program, or any circumstance specified in
5Section 1000.3, the prosecuting attorney or the probation
6department or the court on its own may make a motion to the court
7to terminate pretrial diversion and schedule further proceedings
8as otherwise provided in this code.

9(5) An explanation of criminal record retention and disposition
10resulting from participation in the pretrial diversion program and
11the defendant’s rights relative to answering questions about his or
12her arrest and pretrial diversion following successful completion
13of the program.

14(b) If the defendant consents and waives his or her right to a
15speedy trial and a speedy preliminary hearing, if applicable, the
16court may refer the case to the probation department or the court
17may summarily grant pretrial diversion. When directed by the
18court, the probation department shall make an investigation and
19take into consideration the defendant’s age, employment and
20service records, educational background, community and family
21ties, prior controlled substance use, treatment history, if any,
22demonstrable motivation, and other mitigating factors in
23determining whether the defendant is a person who would be
24benefited by education, treatment, or rehabilitation. The probation
25department shall also determine which programs the defendant
26would benefit from and which programs would accept the
27defendant. The probation department shall report its findings and
28recommendations to the court. The court shall make the final
29determination regarding education, treatment, or rehabilitation for
30the defendant. If the court determines that it is appropriate, the
31court shall grant pretrial diversion if the defendantbegin insert pleads not guilty
32to the charge or charges andend insert
waives the right to a speedy trial and
33to a speedy preliminary hearing, if applicable.

34(c) (1) No statement, or any information procured therefrom,
35made by the defendant to any probation officer or drug treatment
36worker, that is made during the course of any investigation
37conducted by the probation department or treatment program
38pursuant to subdivision (b), and prior to the reporting of the
39probation department’s findings and recommendations to the court,
P6    1shall be admissible in any action or proceeding brought subsequent
2to the investigation.

3(2) No statement, or any information procured therefrom, with
4respect to the specific offense with which the defendant is charged,
5that is made to any probation officer or drug program worker
6subsequent to the granting of pretrial diversion shall be admissible
7in any action or proceeding.

8(d) A defendant’s participation in pretrial diversion pursuant to
9this chapter shall not constitute a conviction or an admission of
10guilt for any purpose.

11

SEC. 3.  

Section 1000.2 of the Penal Code is amended to read:

12

1000.2.  

(a) The court shall hold a hearing and, after
13consideration of any information relevant to its decision, shall
14determine if the defendant consents to further proceedings under
15this chapter and if the defendant should be granted pretrial
16diversion. If the defendant does not consent to participate in pretrial
17diversion the proceedings shall continue as in any other case.

18(b) At the time that pretrial diversion is granted, any bail bond
19or undertaking, or deposit in lieu thereof, on file by or on behalf
20of the defendant shall be exonerated, and the court shall enter an
21order so directing.

22(c) The period during which pretrial diversion is granted shall
23be for no less than six months nor longer than one year.begin insert However,
24the defendant may request and the court shall grant, for good
25cause shown, an extension of time to complete a program specified
26in subdivision (c) of Section 1000.end insert
Progress reports shall be filed
27by the probation department with the court as directed by the court.

28

SEC. 4.  

Section 1000.3 of the Penal Code is amended to read:

29

1000.3.  

(a) If it appears to the prosecuting attorney, the court,
30or the probation department that the defendant is performing
31unsatisfactorily in the assigned program, or that the defendant is
32convicted of an offense that reflects the defendant’s propensity for
33violence, or the defendant is convicted of a felony, the prosecuting
34attorney, the court on its own, or the probation department may
35make a motion for termination from pretrial diversion.

36(b) After notice to the defendant, the court shall hold a hearing
37to determine whether pretrial diversion shall be terminated.

38(c) If the court finds that the defendant is not performing
39satisfactorily in the assigned program, or the court finds that the
40defendant has been convicted of a crime as indicated in subdivision
P7    1(a) the court shallbegin delete reinstate the criminal charge or charges andend delete
2 schedule the matter for further proceedings as otherwise provided
3in this code.

4(d) If the defendant has completed pretrial diversion, at the end
5of that period, the criminal charge or charges shall be dismissed.

6(e) Prior to dismissing the charge or charges or terminating
7pretrial diversion, the court shall consider the defendant’s ability
8to pay and whether the defendant has paid a diversion restitution
9fee pursuant to Section 1001.90, if ordered, and has met his or her
10financial obligation to the program, if any. As provided in Section
111203.1b, the defendant shall reimburse the probation department
12for the reasonable cost of any program investigation or progress
13report filed with the court as directed pursuant to Sections 1000.1
14and 1000.2.

15

SEC. 5.  

Section 1000.4 of the Penal Code is amended to read:

16

1000.4.  

(a) Any record filed with the Department of Justice
17shall indicate the disposition in those cases referred to pretrial
18diversion pursuant to this chapter. Upon successful completion of
19a pretrial diversion program, the arrest upon which the defendant
20was diverted shall be deemed to have never occurred. The
21defendant may indicate in response to any question concerning his
22or her prior criminal record that he or she was not arrested or
23granted pretrial diversion for the offense, except as specified in
24subdivision (b). A record pertaining to an arrest resulting in
25successful completion of a pretrial diversion program shall not,
26without the defendant’s consent, be used in any way that could
27result in the denial of any employment, benefit, license, or
28certificate.

29(b) The defendant shall be advised that, regardless of his or her
30successful completion of the pretrial diversion program, the arrest
31upon which pretrial diversion was based may be disclosed by the
32Department of Justice in response to any peace officer application
33request and that, notwithstanding subdivision (a), this section does
34not relieve him or her of the obligation to disclose the arrest in
35response to any direct question contained in any questionnaire or
36application for a position as a peace officer, as defined in Section
37830.

38

SEC. 6.  

Section 1000.5 of the Penal Code is amended to read:

39

1000.5.  

(a) The presiding judge of the superior court, or a
40judge designated by the presiding judge, together with the district
P8    1attorney and the public defender, may agree in writing to establish
2and conduct a preguilty plea drug court program pursuant to the
3provisions of this chapter, wherein criminal proceedings are
4suspended without a plea of guilty for designated defendants. The
5drug court program shall include a regimen of graduated sanctions
6and rewards, individual and group therapy,begin delete urine analysisend deletebegin insert urinalysisend insert
7 testing commensurate with treatment needs, close court monitoring
8and supervision of progress, educational or vocational counseling
9as appropriate, and other requirements as agreed to by the presiding
10judge or his or her designee, the district attorney, and the public
11defender. If there is no agreement in writing for a preguilty plea
12program by the presiding judge or his or her designee, the district
13attorney, and the public defender, the program shall be operated
14as a pretrial diversion program as provided in this chapter.

15(b) The provisions of Section 1000.3 and Section 1000.4
16regarding satisfactory and unsatisfactory performance in a program
17shall apply to preguilty plea programs. If the court finds that (1)
18the defendant is not performing satisfactorily in the assigned
19program, (2) the defendant is not benefiting from education,
20treatment, or rehabilitation, (3) the defendant has been convicted
21of a crime specified in Section 1000.3, or (4) the defendant has
22engaged in criminal conduct rendering him or her unsuitable for
23the preguilty plea program, the court shall reinstate the criminal
24charge or charges. If the defendant has performed satisfactorily
25during the period of the preguilty plea program, at the end of that
26period, the criminal charge or charges shall be dismissed and the
27provisions of Section 1000.4 shall apply.

28

SEC. 7.  

Section 1000.6 of the Penal Code is amended to read:

29

1000.6.  

(a) Where a person is participating in a pretrial
30diversion program or a preguilty plea program pursuant to this
31chapter, the person shall be allowed, under the direction of a
32licensed health care practitioner, to use medications including, but
33not limited to, methadone, buprenorphine, or
34levoalphacetylmethadol (LAAM) to treat substance use disorders
35if the participant allows release of his or her medical records to
36the court presiding over the participant’s preguilty plea or pretrial
37diversion program for the limited purpose of determining whether
38or not the participant is using such medications under the direction
39of a licensed health care practitioner and is in compliance with the
40pretrial diversion or preguilty plea program rules.

P9    1(b) If the conditions specified in subdivision (a) are met, using
2medications to treat substance use disorders shall not be the sole
3reason for exclusion from a pretrial diversion or preguilty plea
4program. A patient who uses medications to treat substance use
5disorders and participates in a preguilty plea or pretrial diversion
6program shall comply with all court program rules.

7(c) A person who is participating in a pretrial diversion program
8or preguilty plea program pursuant to this chapter who uses
9medications to treat substance use disorders shall present to the
10court a declaration from their health care practitioner, or their
11health care practitioner’s authorized representative, that the person
12is currently under their care.

13(d) Urinalysis results that only establish that a person described
14in this section has ingested medication duly prescribed to that
15person by his or her physician or psychiatrist, or medications used
16to treat substance use disorders, shall not be considered a violation
17of the terms of the pretrial diversion or preguilty plea program
18under this chapter.

19(e) Except as provided in subdivisions (a) to (d), inclusive, this
20section shall not be interpreted to amend any provisions governing
21diversion programs.



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