BILL ANALYSIS Ó
AB 1351
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GOVERNOR'S VETO
AB
1351 (Eggman)
As Enrolled September 14, 2015
2/3 vote
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|ASSEMBLY: |47-30 |(June 3, 2015) |SENATE: |22-15 |(September 9, |
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|ASSEMBLY: |48-30 |(September 10, | | | |
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Original Committee Reference: PUB. S.
SUMMARY: Makes the existing deferred entry of judgment (DEJ)
program for specified offenses involving personal use or
possession of controlled substances a pretrial drug diversion
program.
The Senate amendments:
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1)Provide that in order to qualify for pretrial drug diversion,
the defendant must not have a conviction within five years
prior to the alleged commission of the charged offense for any
offense involving controlled substances other than the
offenses that qualify for diversion.
2)State that the pretrial drug diversion program created by this
bill does not affect the existing pretrial misdemeanor
diversion program.
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;
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or parole has ever been revoked without thereafter being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
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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
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
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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.
AS PASSED BY THE ASSEMBLY, this bill:
1)Required, to be eligible for diversion, the defendant must not
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
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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)Provided that a defendant's participation in pretrial
diversion shall not constitute a conviction or an admission of
guilt in any action or proceeding.
3)Stated 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)Changed 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)Stated that a defendant may request, and the court shall
grant, for good cause shown, an extension of time to complete
the program.
6)Provided 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.
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7)Provided 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)Stated 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)Stated 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.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)Potential increase in state trial court costs (General Fund)
to the extent additional and/or more lengthy trials result
than otherwise would have occurred under the existing system
of DEJ. The removal of the requirement to plead guilty in
order to qualify for a treatment program could potentially
result in additional defendants who enter a not guilty plea
but are unsuccessful in a diversion program, who subsequently
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require a more lengthy trial than otherwise would have been
required under the DEJ process after a guilty plea was
entered.
2)The Department of Justice (DOJ) has indicated an unknown, but
potentially significant impact (General Fund) should its
Criminal Law Division experience an increase in workload due
to an increase in litigation for defendants able to have
qualifying drug offenses be diverted, repeatedly, which would
require status appearances for each new case.
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."
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GOVERNOR'S VETO MESSAGE:
AB 1351 would transform the existing deferred entry of judgment
program available to low level drug offenders to one that does
not require a guilty plea. Instead, the offender would plead not
guilty and when the program is completed, the charges would be
dropped. If the offender fails to complete the program, the
prosecutor would proceed with the charges at that time.
While I support the goal of giving low-level offenders a second
chance, I am concerned that the bill eliminates the most
powerful incentive to stay in treatment - the knowledge that
judgment will be entered for failure to do so. The bill goes too
far.
Analysis Prepared by:
Stella Choe / PUB. S. / (916) 319-3744 FN:
0002478