BILL ANALYSIS                                                                                                                                                                                                    Ó



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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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