BILL ANALYSIS Ó
AB 1352
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Date of Hearing: April 21, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1352 (Eggman) - As Introduced February 27, 2015
As Proposed to be Amended in Committee
SUMMARY: Requires the court to allow a defendant to withdraw
his or her guilty or nolo contendere plea in order to avoid
specified adverse consequences if certain conditions are met.
Specifically, this bill:
1)Provides in any case in which a defendant was granted deferred
entry of judgment (DEJ), on or after January 1, 1997, after
pleading guilty or nolo contendere to the charged offense, the
defendant shall be permitted by the court to withdraw the plea
of guilty or nolo contendere and enter a plea of not guilty if
the defendant shows both of the following:
a) The charges were dismissed after the defendant performed
satisfactorily during the DEJ period; and,
b) The plea may result in the denial or loss to the
defendant of any employment, benefit, license, or
certificate, including, but not limited to, causing a
noncitizen defendant to potentially be found inadmissable,
deportable, or subject to any other kind of adverse
immigration consequence.
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2)Requires the court to dismiss the complaint or information
against the defendant.
3)States the Legislative finding that the statement in Penal
Code Section 1000.4, that "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" constitutes misinformation
about the actual consequences of making a plea in the case of
some defendants, including all noncitizen defendants, because
the disposition of the case may cause adverse consequences,
including adverse immigration consequences.
4)Declares based upon this misinformation and the potential
harm, the defendant's prior plea is invalid.
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
diversion or deferred entry of judgment pursuant to this
chapter within five years prior to the alleged commission
of the charged offense;
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f) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense. (Pen. Code, § 1000, subd. (a).)
2)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. (Pen. Code, § 1000, subd. (b).)
3)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. (Pen. Code, §
1000, subd. (c).)
4)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 deferred entry of judgment, or if the defendant
does not consent to participate, the proceedings shall
continue as in any other case. The period during which
deferred entry of judgment 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. (Pen. Code, § 1000.2.)
5)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
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terminated and the defendant may be sentenced as he or she
would for a conviction. (Pen. Code, § 1000.3.)
6)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 deferred entry of
judgment 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. (Pen. Code, § 1000.4, subd. (a).)
7)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. (Pen. Code, §
1000.5.)
8)States that in any case in which (a) a defendant has fulfilled
the conditions of probation for the entire period of
probation, or (b) has been discharged prior to the termination
of the period of probation, or (c) in any other case in which
a court, in its discretion and the interests of justice,
determines that a defendant should be granted the relief
available under this section, the defendant shall, at any time
after the termination of the period of probation, if he or she
is not then serving a sentence for any offense, on probation
for any offense, or charged with the commission of any
offense, be permitted by the court to withdraw his or her plea
of guilty or plea of nolo contendere and enter a plea of not
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guilty; or, if he or she has been convicted after a plea of
not guilty, the court shall set aside the verdict of guilty;
and, in either case, the court shall thereupon dismiss the
accusations or information against the defendant. (Pen. Code,
§ 1203.4, subd. (a).)
EXISTING LAW: Provides circumstances that allow non-citizens to
be deported, which include having been convicted of a violation
of (or a conspiracy or attempt to violate) any law or regulation
of a State, the United States, or a foreign country relating to
a controlled substance as defined, other than a single offense
involving possession for one's own use of 30 grams or less of
marijuana. (8 U.S.C.S. § 1227, subd. (a)(2)(B)(i).)
FISCAL
EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1352
provides a minor expungement procedure to prevent the needless
disruption of thousands of California families. The
expungement proposed by this bill does not retroactively
change the effect of the person's DEJ disposition under
California law. Instead, it will eliminate the disposition as
a conviction for federal immigration purposes. It also will
make right the injustice inadvertently committed against the
immigrant defendants who relied upon PC 1000.4 in deciding to
enter a guilty plea.
"This bill will prevent terrible harm to California families and
immigrant communities. The last several years have seen mass
deportations from the U.S. Of deportations based on criminal
conviction, the largest number has been for minor,
non-trafficking drug offenses. This especially affects
California, the nation's most immigrant-rich state, where one
out of two children lives in a household headed by at least
one foreign born person (and the great majority of the
children are U.S. citizens). Deportation of a parent
devastates a family emotionally and economically and can drain
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state resources as U.S. citizen children go into foster care,
homes go into foreclosure, and remaining citizen family seek
public benefits."
2)Expungement Relief Generally: To "expunge" is to erase or
destroy. The expungement of a record is the removal of a
conviction from a person's criminal record. (United States v.
Hayden (9th Cir. 2001) 255 F.3d 768, 771.) In California,
Penal Code section 1203.4 is the statute typically referred to
as the expungement statute. Defendants who have successfully
completed probation (including early discharge) can petition
the court to set aside a guilty verdict or permit withdrawal
of the guilty or nolo contendere plea and dismiss the
complaint, accusation, or information. (Pen. Code, §1203.4.)
However, the relief under Penal Code section 1203.4 does not
actually provide expungement of the defendant's records. The
prior conviction may still be used in a "subsequent
prosecution of the defendant for any other offense," and if
plead and proven, "shall have the same effect as if probation
had not been granted or the accusation or information
dismissed." (Pen. Code, § 1203.4, subd. (a).) Instead, there
will be an entry made on the record that states that the case
was dismissed. The records still remain fully a public
document.
A dismissal under section 1203.4 does not constitute
"expungement" as defined in the Federal Sentencing Guidelines,
and therefore may be considered as a prior conviction when
calculating a defendant's criminal history. (Hayden, supra,
255 F3d at p. 774.) In Hayden, the court looked at the
specific language contained in 1203.4 to find that because the
statute expressly authorizes the dismissed case to be used as
a prior conviction in a subsequent prosecution, it is clear
that the prior conviction is not expunged or erased so it
could be considered for federal immigration purposes. (Id. at
p. 772.)
In order to constitute an actual expungement, the withdrawal
of the plea and dismissal of the case must not be allowed to
be used for any purpose. Because immigration is the purview
of the federal government, state laws cannot mandate what the
federal government can consider in immigration proceedings.
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However, the state can craft a statute that avoids or
minimizes a person's exposure to adverse immigration
consequences. One of the circumstances that may trigger
deportation proceedings is a conviction related to controlled
substances. (8 U.S.C.S. § 1227, subd. (a)(2)(B)(i).) This
bill allows a person to withdraw a guilty or nolo contendere
plea that exposed the person to adverse immigration
consequences and requires the court thereafter to dismiss the
case. The intended outcome is that the person would not have
a "conviction" as interpreted under federal law to cause the
person to be deported. However, the bill is silent as to
whether, after the case is re-dismissed, the records are
expunged or completely erased from a person's record.
Therefore, it is unclear whether the dismissal created under
this bill prevents the federal government from accessing those
records for immigration purposes.
3)Deferred Entry of Judgment: Participation in a DEJ program
requires 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
the defendant successfully completes DEJ, the arrest shall be
deemed to never have occurred. The Legislature intended the
benefits and protections of a successful completion of DEJ be
given the broadest possible application. (B.W. v. Board of
Med. Quality Assurance (1985) 169 Cal.App. 3d 219.) A
defendant who completes DEJ and has his or her case dismissed
cannot have the offense used against him or her to deny any
employment benefit, license or certificate unless the
defendant consents to the release of his or her record. (Pen.
Code, § 1000.3.)
DEJ provides an opportunity for non-violent drug offenders to
participate in drug treatment programming and probation
supervision rather than being imprisoned. The purpose of
dismissal upon successful completion of DEJ is to allow
offenders to take advantage of having a clean record so that
they can get or retain jobs become, or remain, productive
members of society. However, a dismissal after completion of
a DEJ program for a drug related offense may subject an
immigrant defendant to immigration consequences such as
deportation. (Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994)
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36 F3d. 801.)
This bill requires a court to allow a defendant to withdraw his
or her guilty or nolo contendere plea upon a showing that
charges were dismissed after the defendant performed
satisfactorily during the DEJ period and that the plea may
lead to a denial of a benefit, including adverse immigration
consequences. A defendant's lack of knowledge of immigration
consequences can constitute good cause to withdraw a guilty
plea. (People v. Superior Court (Giron) (1974) 11 Cal. 3d
793.)
4)Withdrawal of a Plea on a Dismissed Case: This bill creates a
statutory mechanism for the court to assume jurisdiction in a
case for the limited purpose of authorizing the person to
withdraw his or her guilty or nolo contendere plea if it is
shown that their case was dismissed after successful
completion of DEJ, and that the plea may result in the denial
or loss to the defendant of any employment, benefit, license,
or certificate, including adverse immigration consequences
such as deportation.
This bill applies to cases that have already been dismissed. A
court may have jurisdiction over a case that has been
dismissed. In People v. Delong (2002), 101 Cal. App. 4th 482,
the defendant successfully completed drug treatment and the
terms of probation pursuant to Proposition 36. Thereafter her
conviction was set aside and the court dismissed the complaint
against the defendant. The statute authorizing the dismissal
states that "the conviction is deemed never to have occurred"
and the defendant is "released from all penalties and
disabilities" resulting from the conviction. (Id. at p. 491;
Pen. Code, § 1210.1, subd. (e)(1).) The defendant subsequently
appealed her conviction and the prosecution argued that the
appeal was moot because the case had been dismissed. The
court held that the appeal was not moot because the conviction
continues to exist for certain purposes, and the defendant
"continues to suffer disadvantageous and prejudicial
collateral consequences therefrom. . ." (Id. at pp. 491-492)
Similarly, in cases dismissed pursuant to DEJ, the conviction
continues to exist for certain purposes and may disadvantage
the defendant, even though the defendant is advised that the
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completion of the 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).)
5)Proposed Amendments: This bill is being considered as proposed
to be amended. The proposed amendments require the court,
after the defendant has withdrawn his or her plea, to dismiss
the complaint or information. The bill as currently written
does not direct the court on how to proceed after the
defendant has withdrawn his or her plea. Without stating that
the necessary outcome, the case would remain open and without
a disposition. Therefore, the amendments require the court to
re-dismiss the case.
6)Argument in Support: According to the American Civil
Liberties Union of California, the co-sponsor of this bill
"Current California law provides for deferred entry of
judgment (DEJ) for minor drug offenses. Under the program, a
defendant is required to plead guilty, waive his or her right
to a speedy trial, and complete a drug treatment program. If
the defendant successfully completes the program, the charges
against the defendant are dismissed. Participants are told
that once the charges are dismissed, there will be no
conviction for any purpose, the arrest will be deemed never to
have occurred, and they will not be denied any legal benefit
based on the disposition whatsoever.
"Unfortunately, the dismissal of the charges following
completion of deferred entry of judgement does not, in fact,
protect defendants from certain federal consequences. This is
because the guilty plea remains on their record and counts as
a "conviction" for certain purposes under federal law. Even
for U.S. citizens, these guilty pleas can carry long-term
negative consequences, including loss of federal housing and
educational benefits. For noncitizens, the consequences can
be immediate and devastating, including deportation, mandatory
detention, and permanent separation from families.
. . .
"AB 1352 adds to our existing expungement process a means for
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people who have successfully completed DEJ to remove the
guilty plea from their record. The expungement provision will
permit people to withdraw their plea in a manner that
immigration authorities will accept. This expungement will
not retroactively change the effect of California DEJ
dispositions because under state law, the person already is
deemed to have no conviction or even arrest. Instead, this
bill provides a technical withdrawal of a guilty plea to meet
federal standards, in order to prevent the needless and unfair
destruction of California families."
7)Argument in Opposition: According to the California District
Attorneys Association, "Beyond the constitutional right to
effective defense counsel, which has an obligation to ensure
that a defendant understands the terms and ramifications of a
plea, Penal Code 1016.5 already requires the court to
administer an advisement to the defendant about potential
adverse immigration consequences prior to accepting a guilty
plea.
"Allowing defendants to petition the court for this form of
relief, simply because those consequences ultimately occurred,
would create tremendous workload issues within the criminal
justice system in terms of calendaring and preparing for
hearings. By making this remedy available to anyone who was
granted deferred entry of judgment since 1997, tens of
thousands of individuals will be eligible for a determination
on whether they may withdraw their pleas - many of whom have
suffered no adverse consequences at all.
"For those whose pleas may trigger some immigration action,
certainly any adverse consequences - immigration, employment,
or otherwise - would have already been suffered in the
intervening 18 years. Conversely, if those adverse
consequences have not yet occurred, perhaps the problem that
AB 1352 seeks to address is not as prevalent as initially
thought."
8)Related Legislation:
a) AB 813 (Gonzalez) would create an avenue of
post-conviction relief for a person to vacate a conviction
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or sentence based on error damaging the petitioner's
ability to meaningfully understand, defend against, or
knowingly accept the immigration consequences of the
conviction. AB 813 will be heard by this Committee today.
b) AB 1351 (Eggman) would change the existing drug DEJ
program to a pretrial drug diversion program. AB 1351 will
be heard by this Committee today.
REGISTERED SUPPORT / OPPOSITION:
Support
Drug Policy Alliance (Sponsor)
Immigrant Legal Resource Center (Sponsor)
American Civil Liberties Union of California (Co-Sponsor)
Coalition for Humane Immigrant Rights of Los Angeles
(Co-Sponsor)
Mexican American Legal Defense and Education Fund (MALDEF)
(Co-Sponsor)
National Council of La Raza (Co-Sponsor)
African Advocacy Network
Asian Americans Advancing Justice - Asian Law Caucus
Asian Americans Advancing Justice - L.A.
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
Faith in Action Kern County
Harvey Milk LGBT Democratic Club
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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 Office
Silicon Valley De-Bug
Solutions for Immigrants
William C. Velasquez Institute
Vital Immigrant Defense Advocacy and Services (VIDAS)
One private individual
Opposition
California District Attorneys Association
California State Sheriffs' Association
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744
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