BILL ANALYSIS Ó
AB 1352
Page 1
ASSEMBLY THIRD READING
AB
1352 (Eggman)
As Amended April 27, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+---------------------+---------------------|
|Public Safety |5-2 |Quirk, Jones-Sawyer, |Melendez, Lackey |
| | |Low, Santiago, | |
| | |Thurmond | |
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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,
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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.
2)Requires the court to dismiss the complaint or information
against the defendant.
3)States the Legislative finding that the statement in Penal Code
(PC) 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
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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;
f) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged offense.
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.
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.
4)Provides that the court shall hold a hearing and, after
consideration of any information relevant to its decision, shall
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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.
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 terminated
and the defendant may be sentenced as he or she would for a
conviction.
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.
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
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satisfactorily during the period of the preguilty plea program,
at the end of that period, the criminal charge or charges shall
be dismissed.
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 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.
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.
FISCAL
EFFECT: Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: According to the author, "AB 1352 provides a minor
expungement procedure to prevent the needless disruption of
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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 [Section]
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. [United States]. 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 state resources as U.S.
citizen children go into foster care, homes go into foreclosure,
and remaining citizen family seek public benefits."
Analysis Prepared by:
Stella Choe / PUB. S. / (916) 319-3744 FN:
0000187
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