BILL ANALYSIS Ó AB 1351 Page 1 Date of Hearing: May 6, 2015 ASSEMBLY COMMITTEE ON APPROPRIATIONS Jimmy Gomez, Chair AB 1351 (Eggman) - As Amended April 16, 2015 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|5 - 2 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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 AB 1351 Page 2 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 AB 1351 Page 3 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 AB 1351 Page 4 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. AB 1351 Page 5 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 Page 6