BILL ANALYSIS Ó
AB 1351
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Date of Hearing: April 21, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1351 (Eggman) - As Amended April 16, 2015
SUMMARY: Changes the existing deferred entry of judgment (DEJ)
program for specified offenses involving personal use or
possession of controlled substances into a pretrial drug
diversion program. Specifically, this bill:
1)Requires, to be eligible for diversion, the defendant must not
have a prior conviction for any offense involving a controlled
substance other than the offenses that may be diverted as
specified; the offense charged must not have involved a crime
of violence or threatened violence; there must be no evidence
of a violation relating to narcotics or restricted dangerous
drugs other than a violation of an offense that may be
diverted; and the defendant must not have any prior
convictions within five years prior to the alleged commission
of the charged offense for a serious or violent felony, as
defined.
2)Provides that a defendant's participation in pretrial
diversion shall not constitute a conviction or an admission of
guilt in any action or proceeding.
3)Changes the minimum time allowed prior to dismissal of the
case from 18 months to six months, and the maximum time the
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proceedings in the case can be suspended from three years to
one year.
4)Provides that 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 of pre-trial diversion.
5)Provides that 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
specified type of crime, the court shall reinstate the
criminal charge or charges and schedule the matter for further
proceedings.
6)States if the defendant has completed pretrial diversion, at
the end of that period, the criminal charge or charges shall
be dismissed. Upon successful completion of a pretrial
diversion program, the arrest upon which the defendant was
diverted shall be deemed to have never occurred.
7)Retains provisions in current law but changes references from
DEJ to pre-trial diversion and deletes references to affecting
judgment to be entered against the defendant.
8)States that a person participating in a pretrial diversion
program or a preguilty plea program shall be allowed, under
the direction of a licensed health care practitioner, to use
medications to treat substance use disorders if the
participant allows release of his or her medical records to
the court 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.
EXISTING LAW:
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1)Provides that a defendant may qualify for DEJ of specified
non-violent drug possession offenses if the following apply to
the defendant:
a) The defendant has no prior conviction for any offense
involving controlled substances;
b) The offense charged did not involve a crime of violence
or threatened violence;
c) There is no evidence of a violation relating to
narcotics or restricted dangerous drugs other than a
violation of the specified deferrable drug offenses;
d) The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed;
e) 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;
f) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense. (Pen. Code, § 1000, subd. (a).)
2)Specifies the offenses that are eligible for DEJ, which
include possession for personal use of specified controlled
substances, possession of certain drug paraphernalia, being
under the influence of a controlled substance, cultivation of
marijuana for personal use, and being present in a place where
controlled substances are being used. (Pen. Code, 1000, subd.
(a).)
3)States a prosecutor has a duty to review files to decide
whether the defendant is eligible for DEJ. 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
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to allow the court to set the hearing for DEJ at the
arraignment. (Pen. Code, § 1000, subd. (b).)
4)Requires all referrals for DEJ granted by the court pursuant
to this chapter to be made only to programs that have been
certified by the county drug program administrator, 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 specified. (Pen. Code, §
1000, subd. (c).)
5)Provides that 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 and if the defendant should be granted DEJ. 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, the proceedings shall
continue as in any other case. The period during which
deferred entry of judgment is granted shall be for no less
than 18 months nor longer than three years. Progress reports
shall be filed by the probation department with the court as
directed by the court. (Pen. Code, § 1000.2.)
6)Requires, if the defendant has performed satisfactorily during
the period in which DEJ was granted, at the end of that
period, the criminal charge or charges to be dismissed. If
the defendant does not perform satisfactorily, DEJ may be
terminated and the defendant may be sentenced as he or she
would for a conviction. (Pen. Code, § 1000.3.)
7)States that upon successful completion of a DEJ program, the
arrest upon which the judgment was deferred 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
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judgment for the offense, except as specified for employment
as a peace officer. A record pertaining to an arrest resulting
in successful completion of a deferred entry of judgment
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. (Pen. Code, § 1000.4, subd.
(a).)
8)Authorizes counties to establish and conduct a preguilty plea
drug court program wherein criminal proceedings are suspended
without a plea of guilty for designated defendants if so
agreed upon in writing by the presiding judge of the superior
court, or a judge designated by the presiding judge, together
with the district attorney and the public defender. If the
defendant is not performing satisfactorily in the program, the
court may reinstate criminal proceedings. 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. (Pen. Code, §
1000.5.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "This bill seeks
to limit harsh consequences to immigrants by changing the
current process for nonviolent, misdemeanor drug offenses from
deferred entry of judgment (DEJ) to pretrial diversion. While
the current DEJ process eliminates a conviction if a defendant
successfully completes DEJ, the defendant may still face
federal consequences, including deportation if the defendant
is undocumented, or the prohibition from becoming a U.S.
citizen if the defendant is a legal permanent resident. This
is systemic injustice to immigrants in this country, but even
U.S. citizens may face federal consequences, including loss of
federal housing and educational benefits.
"Given that President Obama has publicly called for
immigration officials to focus on violent, dangerous felons,
this bill will have a profoundly positive impact on more than
$2 million undocumented immigrants and the more than 3 million
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legal permanent residents living in California by eliminating
the draconian consequences faced by immigrants who participate
in diversion programs in good faith. This bill will keep
families together, help people retain eligibility for U.S.
citizenship, and also preserve access to other benefits for
those who qualify."
2)DEJ as Compared to Diversion: Under existing law, a defendant
charged with violations of certain specified drug may be
eligible to participate in a DEJ program if he or she meets
specified criteria. (Pen. Code, §§ 1000 et seq.) With DEJ, a
defendant must enter a guilty plea and entry of judgment on
the defendant's guilty plea is deferred pending successful
completion of a program or other conditions. If a defendant
placed in a DEJ program fails to complete the program or
comply with conditions imposed, the court may resume criminal
proceedings and the defendant, having already pleaded guilty,
would be sentenced. If the defendant successfully completes
DEJ, the arrest shall be deemed to never have occurred and 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.
Diversion on the other hand suspends the criminal proceedings
without requiring the defendant to enter a plea. Diversion
also requires the defendant to successfully complete a program
and other conditions imposed by the court. Unlike DEJ
however, if a defendant does not successfully complete the
diversion program, criminal proceedings resume but the
defendant, having not entered a plea, may still proceed to
trial or enter a plea. If diversion is successfully completed,
the criminal charges are dismissed and the defendant may, with
certain exceptions, legally answer that he or she has never
been arrested or charged for the diverted offense.
In order to avoid adverse immigration consequences, diversion
of an offense is preferable to DEJ because the defendant is
not required to plea guilty in order to participate in the
program. Having a conviction for possession of controlled
substances, even if dismissed, could trigger deportation
proceedings or prevent a person from becoming a U.S. citizen.
(Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994) 36 F3d. 801.)
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This bill seeks to minimize the potential exposure to adverse
immigration consequences for persons who commit minor drug
possession offenses by re-establishing a pretrial diversion
program for minor drug possession. Prior to 1997, the program
pursuant to Penal Code § 1000 et seq. was a pretrial diversion
program. SB 1369 (Kopp), Chapter 1132, Statutes of 1996,
changed the diversion program to a DEJ program.
3)Argument in Support: The Immigrant Legal Resource Center
(ILRC), a sponsor of this bill, writes, "According to data
published by Syracuse University, over 250,000 people have
been deported from the U.S. for nonviolent drug offenses since
2008. A nonviolent drug offense was the cause of deportation
for more than one in every ten people deported in 2013 for any
reason.
"This is particularly devastating to families in California,
which is the most immigrant-rich state in America. One out of
every four persons living in the state is foreign-born. Half
of California's children live in households headed by at least
one foreign-born parent - and the majority of these children
are U.S. citizens. It is estimated that 50,000 parents of
U.S. citizen children were deported in a little over two
years, leaving many children parentless. Deportation due to
minor drug offenses destroys California families.
"AB 1351 will amend Penal Code 1000 et seq. to allow courts to
order pre-trial diversion, rather than require a guilty plea.
This was the way that PC 1000 worked until 1997. Because there
will be no guilty plea, there will be no 'conviction' for
federal immigration purposes. For any person who fails to
adhere to conditions of a pre-trial diversion program, the
court could reinstate the charges and schedule proceedings
pursuant to existing law. Diversion will not be allowed for
any person charged with drug sale, or possession for sale, nor
will be allowed for persons who involve minors in drug sales
or provide drugs to minors."
4)Argument in Opposition: According to the California District
Attorneys Association, "AB 1351 would turn [the current]
process on its head, allowing the defendant to enter a
treatment program before entering a plea. If the program was
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not completed successfully, only then would criminal
proceedings actually begin. From a practical standpoint, this
creates tremendous problems for prosecutors, as it becomes
much more difficult to locate witnesses and maintain evidence
many months after the offense has occurred.
"Additionally, AB 1351 would reduce the length of drug
treatment programs down to one-third of what they currently
are. Right now, someone participates in drug diversion for 18
months to 36 months. This bill would only allow 6 to 12
months of treatment. Much of the success of drug diversion is
based on this long-term treatment. Reducing the required
length of treatment might lead to more people completing their
programs, but it also reduces the likelihood that those
programs will actually have positive long-term outcomes for
drug offenders. It's unclear how reducing the amount of drug
treatment that someone receives would have any positive impact
on their immigration consequences.
"Further, AB 1351 removes many of the pre-requisites for
participation in drug diversion. Currently, a defendant must
not have any prior drug convictions in order to be eligible
for drug diversion. Under AB 1351, as long as the prior
offenses were all diversion-eligible offenses, there is no
limit to the number of drug offenses someone could accumulate
while maintaining drug diversion eligibility. This bill also
eliminates the requirement that a defendant have no felony
convictions in the previous five years, instead only requiring
that a defendant not have any prior serious or violent
felonies."
5)Related Legislation:
a) AB 1352 (Eggman) requires a court to allow a defendant
to withdraw his or her guilty or nolo contendere plea and
thereafter dismiss the case upon a finding that the case
was dismissed after the defendant completed DEJ and that
the plea may result in the denial or loss to the defendant,
as specified. AB 1352 will be heard by this Committee
today.
b) AB 813 (Gonzales) would create an avenue of
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post-conviction relief for a person to vacate a conviction
or sentence based on error damaging the petitioner's
ability to meaningfully understand, defend against, or
knowingly accept the immigration consequences of the
conviction. AB 813 will be heard by this Committee today.
6)Prior Legislation: SB 1369 (Kopp), Chapter 1132, Statutes of
1996, changed the diversion program for drug offenders to a
deferred entry of judgment program. Increased the time allowed
before a case can be dismissed from a period of no less than
six months to two years, to a period of no less than 18 months
to 3 years.
REGISTERED SUPPORT / OPPOSITION:
Support
Drug Policy Alliance (Sponsor)
Immigrant Legal Resource Center (Sponsor)
American Civil Liberties Union of California (Co-Sponsor)
Coalition for Humane Immigrant Rights of Los Angeles
(Co-Sponsor)
Mexican American Legal Defense and Education Fund (MALDEF)
(Co-Sponsor)
National Council of La Raza (Co-Sponsor)
African Advocacy Network
Asian Americans Advancing Justice - Asian Law Caucus
Asian Americans Advancing Justice - L.A.
Asian Law Alliance
California Immigrant Policy Center
California Partnership
California Public Defenders Association
California Rural Legal Assistance Foundation
Californians for Safety and Justice
Californians United for a Responsible Budget
Central American Resource Center - Los Angeles
Chinese for Affirmative Action
Community United Against Violence
Congregations Building Community
ConXión to Community
Del Sol Group
Dolores Street Community Services
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Faith in Action Kern County
Harvey Milk LGBT Democratic Club
Human Rights Watch
Immigration Action Group
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
Los Angeles Regional Reentry Partnership
Justice Not Jails
MAAC
Mujeres Unidas y Activas
National Association of Social Workers - California Chapter
National Day Laborer Organizing Network
Pangea Legal Services
PICO California
Placer People of Faith
Presente.org
Progressive Christians Uniting
Red Mexicana de Lideres y Organizaciones Migrantes
Santa Clara County Public Defender's Office
Silicon Valley De-Bug
Solutions for Immigrants
William C. Velasquez Institute
Vital Immigrant Defense Advocacy and Services (VIDAS)
Two private individuals
Opposition
California District Attorneys Association
California State Sheriff's Association
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744
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