Amended in Senate September 3, 2015

Amended in Assembly June 1, 2015

Amended in Assembly April 16, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1351

Introduced by Assembly Member Eggman

(Coauthor: Senator Hall)

February 27, 2015

An act to amend Sections 1000, 1000.1, 1000.2, 1000.3, 1000.4, 1000.5, and 1000.6 begin delete of end delete begin insert of, and to add Section 1000.7 to, end insert 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a violation that qualifies for the program, the defendant’s record does not indicate that probation or parole has ever been revoked without being completed, and the defendant’s record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted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 begin delete change end delete begin insert make end insert the deferred entry of judgment program begin delete into end delete a pretrial diversion program. begin delete Under the pretrial diversion program created by this bill, end delete begin insert The bill would provide that end insert a defendant begin delete would qualify end delete begin insert qualifies for the pretrial diversion program end insert if he or she has no prior conviction begin insert within 5 years prior to the alleged commission of the charged offense end insert for any offense involving controlled substances other than the begin delete offenses that qualify end delete begin insert offense that qualifies him or her end insert 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 would enter a not guilty plea, and begin delete would suspend the end delete proceedings begin insert would be suspended end insert in order begin insert for the defendant end insert to enter a drug treatment program for 6 months to one year, or longer if requested by the defendant with good cause. begin delete If end delete begin insert The bill would require the court, if end insert the defendant does not perform satisfactorily in the program or is convicted of specified crimes, begin delete the court would end delete begin insert to end insert terminate the program and begin insert reinstate end insert the criminal begin delete proceedings would be reinstated. If the defendant completes the program, end delete begin insert proceedings. The bill would require end insert the criminal charges begin delete would be dismissed. end delete begin insert to be dismissed if the defendant completes the program. end insert

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 begin insert within five years prior
to the alleged commission of the charged offense end insert for any offense
involving controlled substances 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 has no prior 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 (4), inclusive, of
subdivision (a) apply to the defendant. 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 pretrial diversion
begin delete of judgment end delete at the arraignment. If the defendant is found ineligible
for 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 pretrial
diversion is a postconviction appeal.

(c) All referrals for 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) Pretrial diversion for 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, urinalysis 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 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 the court may grant pretrial diversion
with respect to any crime specified in subdivision (a) of Section
1000 that is charged, provided that the defendant pleads not guilty
to the charge or charges, waives the right begin insert to a speedy trial and end insert to
a speedy 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
six months and no later than 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
to terminate pretrial diversion and schedule further proceedings
as otherwise provided in this code.

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

(b) If the defendant consents and waives his or her right to a
speedy trial and a speedy preliminary hearing, if applicable, the
court may refer the case to the probation department or the court
may summarily grant 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 pretrial diversion if the defendant pleads not guilty
to the charge or charges and 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.

(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 pretrial diversion shall be admissible
in any action or proceeding.

(d) A defendant’s participation in pretrial diversion pursuant to
this chapter shall not constitute a conviction or an admission of
guilt for any 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 pretrial
diversion. If the defendant does not consent to participate in pretrial
diversion the proceedings shall continue as in any other case.

(b) At the time that 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.

(c) The period during which pretrial diversion is granted shall
be for no less than six months nor longer than one year. However,
the defendant may begin delete request end delete begin insert request, end insert and the court shall grant, for
good cause shown, an extension of time to complete a program
specified in subdivision (c) of Section 1000. 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
convicted of an offense that reflects the defendant’s propensity for
violence, or the defendant is convicted of a felony, the prosecuting
attorney, the court on its own, or the probation department may
make a motion for termination from pretrial diversion.

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

(c) If the court finds that the defendant is not performing
satisfactorily in the assigned program, or the court finds that the
defendant has been convicted of a crime as indicated in subdivision
(a) the court shall schedule the matter for further proceedings as
otherwise provided in this code.

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

(e) Prior to dismissing the charge or charges or 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 referred to pretrial
diversion pursuant to this chapter. Upon successful completion of
a pretrial diversion program, the arrest upon which the 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 pretrial diversion for the offense, except as specified in
subdivision (b). A record pertaining to an arrest resulting in
successful completion of a 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 pretrial diversion program, the arrest
upon which 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, urinalysis 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 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 pretrial
diversion program or a preguilty plea program pursuant to this
chapter, the person 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) to treat substance use disorders
if the participant allows release of his or her medical records to
the court presiding over the participant’s preguilty plea or pretrial
diversion program for the limited purpose of determining whether
or not the participant is using such medications under the direction
of a licensed health care practitioner and is in compliance with the
pretrial diversion or preguilty plea program rules.

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

(c) A person who is participating in a pretrial diversion program
or preguilty plea program pursuant to this chapter who uses
medications to treat substance use disorders shall present to the
court a declaration from begin delete their end delete begin insert his or her end insert health care practitioner,
or begin delete their end delete begin insert his or her end insert health care practitioner’s authorized
representative, that the person is currently under their care.

(d) Urinalysis results that only establish that a person described
in this section has ingested 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 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
diversion programs.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 1000.7 is added to the end insert begin insert Penal Code end insert begin insert , end insert immediately
following Section 1000.6 begin insert , to read: end insert

begin insert

begin insert 1000.7. end insert   

This chapter does not affect a pretrial diversion
program provided pursuant to Chapter 2.7 (commencing with
Section 1001).

end insert