BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1351


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          Date of Hearing:  May 6, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          AB  
          1351 (Eggman) - As Amended April 16, 2015


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          Urgency:  No  State Mandated Local Program:  NoReimbursable:  No


          SUMMARY:


          This bill 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.  To be eligible for diversion: a) the  








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          defendant must not have a prior conviction for any offense  
          involving a controlled substance other than the offenses that  
          may be diverted as specified; b) the offense charged must not  
          have involved a crime of violence or threatened violence; c)  
          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 d) the defendant must not have  
          any prior convictions for a serious or violent felony, as  
          defined, within five years prior to the alleged commission of  
          the charged offense.


          FISCAL EFFECT:


          Significant costs, in the hundreds of thousands of dollars (GF),  
          to the courts for additional court trials since more individuals  
          will likely plead innocent to drug offenses, even after failing  
          the diversion program.  The incentive to plead guilty to qualify  
          for the DEJ is removed by this bill. 


          COMMENTS:


          1)Purpose.  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  








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            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  
            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)Background.   Under existing law, a defendant charged with  
            violations of certain specified drug offenses may be eligible  
            to participate in a DEJ program if he or she meets specified  
            criteria.  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  








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            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. 





            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  
            was a pretrial diversion program, but SB 1369 (Kopp), Chapter  
            1132, Statutes of 1996, changed the diversion program to a DEJ  
            program.     


            
            Current law 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.  












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          3)Argument in Support.  The Immigrant Legal Resource Center  
            (ILRC), a sponsor of this bill, writes, "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  
            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.



          
          Analysis Prepared by:Pedro R. Reyes / APPR. / (916)  
          319-2081

















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