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
AB 1351
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