BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   THIRD READING 


          Bill No:  AB 1351
          Author:   Eggman (D)
          Amended:  9/3/15 in Senate
          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 replaces the existing deferred entry of  
          judgment drug education and treatment program with a pretrial  
          diversion program.
          
          Senate Floor Amendments of 9/3/15 (1) allow a person previously  
          convicted of a drug offense that occurred no sooner than five  
          years prior to the pending case to participate in drug  
          diversion; (2) provide that a person admitted into a diversion  








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          program waive the right to a speedy trial; and (3) and clarify  
          that the bill does not affect the misdemeanor diversion program  
          described in Penal Code Sections 1001-1001.9
          

          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.) 

          This bill:







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          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 within five year 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 defined, within five years of the current  
            charges.

          3)Provides that a defendant's participation in pretrial  
            diversion, as with DEJ under current law, 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)Applies the following procedures and rules that apply under  
            DEJ to pretrial diversion programs and adapts them to  
            diversion:

        a)If the prosecuting attorney, the court, or the probation  
          department believes that the defendant is performing  
          unsatisfactorily in the program, convicted of a felony or 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.

        b)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  







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          schedule the matter for further proceedings.

        c)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.

          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  
          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.)  







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          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.  
          (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  







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          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  
          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


          SUPPORT:   (Verified9/4/15)




          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)







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          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
          County Behavioral Health Directors Association
          Del Sol Group; Dolores Street Community Services
          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:   (Verified9/4/15)








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          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
          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. / 
          9/4/15 11:29:25


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