BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1351|
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THIRD READING
Bill No: AB 1351
Author: Eggman (D)
Amended: 6/1/15 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 4-2, 7/14/15
AYES: Hancock, Leno, Liu, Monning
NOES: Anderson, Stone
NO VOTE RECORDED: Glazer
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 47-30, 6/3/15 - See last page for vote
SUBJECT: Deferred entry of judgment: pretrial diversion
SOURCE: American Civil Liberties Union of California
Coalition for Humane Immigrant Rights of Los Angeles
Mexican American Legal Defense and Education Fund
National Council of La Raza
DIGEST: This bill converts the existing system of deferred
entry of judgment (DEJ) for qualified drug possession offenders
- generally those with no prior convictions or non-drug current
charges - to a true diversion system, under which eligible
defendants are admitted to an education and treatment program
prior to conviction and granted of a dismissal of the charges
upon successful completion of the program; allows persons
previously convicted of a drug possession offense, or who have
previously participated in a diversion or DEJ program, or those
for whom parole or probation has been revoked, may participate
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in a diversion program; and sets the length of the program from
six months to one year, except that the court can extend that
time for good cause.
ANALYSIS:
Existing law:
1)Provides that the entry of judgment may be deferred for a
defendant charged with specific controlled substance offenses
if he or she meets specific criteria, including that he or she
has no prior convictions for any offense involving a
controlled substance and no felony convictions within five
years. (Pen. Code § 1000.)
2)Provides that upon successful completion of a deferred entry
of judgment, the arrest upon which the judgment was deferred
shall be deemed to never have occurred. The defendant may in
response to any question in regard to his or her prior
criminal record that he or she was not arrested or granted
deferred entry of judgment, except as specified. (Pen. Code §
1000.4, subd. (a).)
3)States that 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).)
4)Requires that a defendant be advised that regardless of his or
her successful completion of a deferred entry of judgment
program, the arrest upon which the case was based, may be
disclosed by the Department of Justice (DOJ) in response to
any peace officer application request, and that the defendant
is obligated to disclose the arrest in response to any direct
question on the application. (Pen. Code § 1000.4, subd.
(b).)
5)Provides that a court may administer a pre-plea drug diversion
program if the court, the district attorney and the public
defender agree. (Pen. Code § 1000.5.)
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This bill:
1)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.
2)Requires, to be eligible for diversion, that the defendant
must not have a prior conviction for a controlled substance
offense other than the offenses that may be diverted; the
offense charged must not have involved violence or threatened
violence; there must be no evidence in the current incident
that the defendant committed a drug offense other than an
offense that may be diverted; and the defendant must not have
any conviction for a serious or violent felony, as define,
within five years of the current charges.
3)Provides that a defendant's participation in pretrial
diversion shall not constitute a conviction or an admission of
guilt in any action or proceeding.
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, except the court can extend the length of the
program for good cause.
5)Provides that if the prosecuting attorney, the court, or the
probation department believes that the defendant is performing
unsatisfactorily in the program, or that he or she has been
convicted of an offense that indicates the defendant is prone
to violence, or the defendant is convicted of a felony, the
prosecuting attorney, the court, or the probation department
may move for termination of diversion.
6)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.
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7)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.
8)Retains provisions in the current DEJ law that are consistent
with to pre-trial diversion.
9)States that a participant in a pretrial diversion program or a
preguilty plea program shall be allowed, under the direction
of a licensed practitioner, to use medications - including but
not limited to methadone, buprenorphine and
levoalphacetylmethadol (LAAM) - 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 practitioner and
is in compliance with the pretrial diversion or preguilty plea
program rules.
Background
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
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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 plead 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.)
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. Proponents of SB 1369 and its DEJ provisions argued
that DEJ would provide more effective drug treatment than
diversion courts. While many involved in DEJ and drug court
programs believe in the effectiveness of the programs, research
has not established the superiority of DEJ or drug court
programs over other forms of drug treatment. SB 1369 did
include a provision allowing any county to elect to operate a
drug possession diversion program, with the approval of the
presiding judge, the district attorney and the public defender.
It is unknown whether studies have been done comparing the
effectiveness of DEJ and true diversion, including long-term
outcomes.
Recent research has considered the effectiveness of varying
forms of court-based drug treatment with other forms or sources
of treatment demand. (Much of the basis for this comment is a
report or monograph written by Senate Fellow, Bethany Renfree at
the request of Senator Jackson.) UCLA studies of the
effectiveness of SACPA - Proposition 36 of 2000 were released in
2003 and 2006.
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(http://www.uclaisap.org/prop36/documents/sacpa_costanalysis.pdf)
SACPA requires drug treatment without incarceration for
non-violent drug possession. UCLA found that the SACPA model
was as effective as drug court or voluntary treatment models and
produced $2.50 in savings from every dollar spent. Improvements
in funding allocations and programs would have produced better
results.
State funding for SACPA ended in 2006. Individual counties must
bear the costs of the program. The California Society of
Addiction Medicine has more recently found that SACPA produced
positive results, including for participants who did not
complete the full program.
An extensive 2007 study of 474 drug offenders in drug court in
Maricopa County Arizona (the Phoenix area) compared the outcomes
in drug court treatment for persons who were subject to jail
sanctions against those who were not subject to sanctions. The
study found that the threat of jail sanctions did not affect the
participant's rate of retention in or completion of the program.
There has been some published research concluding that specific
drug court models may be effective in reducing drug abuse, at
least in the short term. The model is the HOPE program in
Hawaii, in which the court engages in very close, direct and
constant monitoring of participants in the program.
Participants are drug tested frequently and must follow program
conditions or be subject to immediate, short-term incarceration.
Deferred entry of judgment and true pre-plea diversion (DEJ) are
distinct programs from the Substance Abuse and Crime Prevention
Act - SACPA ("Prop 36") - program. After enactment of SACPA in
2000, the California Attorney General opined that SACPA did not
repeal DEJ by implication. (84 Ops. Cal. Atty. Gen. 85 - 2001.)
Deferred entry of judgment - as the name of the program denotes
- applies prior to imposition of judgment and sentence. SACPA
is a probation program under which a person convicted of a
non-violent drug possession offense must be offered treatment,
without incarceration, on probation. Further, the offenses
covered by the two programs, while overlapping to a great
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extent, are not the same. The offenses covered under SACPA are
broader than those included under DEJ. As the covered offenses
and eligibility requirements are broader under SACPA than DEJ,
it is most likely that a person who fails in DEJ would be
eligible for SACPA.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee: Potentially
significant increase in trial court costs for new petitions to
dismiss pleas of guilty and nolo contendere submitted for cases
granted DEJ retroactive to January 1, 1997.
SUPPORT: (Verified 8/28/15)
American Civil Liberties Union of California (co-source)
Coalition for Humane Immigrant Rights of Los Angeles (co-source)
Mexican American Legal Defense and Education Fund (co-source)
National Council of La Raza (co-source)
African Advocacy Network
Asian Americans Advancing Justice
Asian Law Alliance
California Attorneys for Criminal Justice
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
Del Sol Group; Dolores Street Community Services
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Faith in Action Kern County
Friends Committee on Legislation of California
Harvey Milk LGBT Democratic Club
Human Rights Watch
Immigration Action Group; Institute for Justice
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
National Immigration Law Center
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 Offic
Silicon Valley De-Bug
Solutions for Immigrants
William C. Velasquez Institute
Vital Immigrant Defense Advocacy and Services
OPPOSITION: (Verified8/28/15)
California District Attorneys Association
California State Board of Pharmacy
California State Sheriffs' Association
ASSEMBLY FLOOR: 47-30, 6/3/15
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,
Campos, Chau, Chávez, Chiu, Chu, Cooley, Daly, Dodd, Eggman,
Frazier, Cristina Garcia, Eduardo Garcia, Gipson, Gomez,
Gonzalez, Gordon, Hadley, Roger Hernández, Holden,
Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin,
Nazarian, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Mark Stone, Ting, Weber, Williams, Wood,
Atkins
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NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,
Dababneh, Dahle, Beth Gaines, Gallagher, Gatto, Gray, Grove,
Harper, Irwin, Jones, Kim, Lackey, Linder, Maienschein,
Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson,
Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Cooper, O'Donnell, Thurmond
Prepared by:Jerome McGuire / PUB. S. /
8/31/15 22:13:52
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