BILL ANALYSIS Ó AB 1351 Page 1 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 AB 1351 Page 2 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: AB 1351 Page 3 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 AB 1351 Page 4 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 AB 1351 Page 5 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 AB 1351 Page 6 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.) AB 1351 Page 7 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 AB 1351 Page 8 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 AB 1351 Page 9 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 AB 1351 Page 10 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 AB 1351 Page 11