BILL ANALYSIS Ó
AB 1351
Page 1
ASSEMBLY THIRD READING
AB
1351 (Eggman)
As Amended June 1, 2015
Majority vote
-------------------------------------------------------------------
|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+----------------------+--------------------|
|Public Safety |5-2 |Quirk, Jones-Sawyer, |Melendez, Lackey |
| | |Low, Santiago, | |
| | |Thurmond | |
| | | | |
|----------------+------+----------------------+--------------------|
|Appropriations |12-5 |Gomez, Bonta, |Bigelow, Chang, |
| | |Calderon, Daly, |Gallagher, Jones, |
| | |Eggman, Eduardo |Wagner |
| | |Garcia, Gordon, | |
| | |Holden, Quirk, | |
| | |Rendon, Weber, Wood | |
| | | | |
| | | | |
-------------------------------------------------------------------
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
AB 1351
Page 2
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)States if the court determines that it is appropriate, the court
shall grant pretrial diversion if the defendant pleads not
guilty to the charge or charges and waives the right to a speedy
trial and to a speedy preliminary hearing, if applicable.
4)Changes the minimum time allowed prior to dismissal of the case
from 18 months to six months, and the maximum time the
proceedings in the case can be suspended from three years to one
year.
5)States that a defendant may request, and the court shall grant,
for good cause shown, an extension of time to complete the
program.
6)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.
AB 1351
Page 3
7)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.
8)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.
9)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:
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;
AB 1351
Page 4
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 DEJ 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.
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.
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 to allow the
court to set the hearing for DEJ at the arraignment.
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
AB 1351
Page 5
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.
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 DEJ, or if
the defendant does not consent to participate, the proceedings
shall continue as in any other case. The period during which
DEJ 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.
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.
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 DEJ for the offense, except
as specified for employment as a peace officer. A record
pertaining to an arrest resulting in successful completion of a
DEJ 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.
AB 1351
Page 6
FISCAL EFFECT: According to the Assembly Appropriations
Committee, minor absorbable costs to the trial courts.
COMMENTS: According to the author, "This bill seeks to limit
harsh consequences to immigrants by changing the current process
for nonviolent, misdemeanor drug offenses from 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 United States
(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 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."
Analysis Prepared by:
Stella Choe / PUB. S. / (916) 319-3744 FN:
0000740
AB 1351
Page 7