BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1352 Hearing Date: June 30, 2015
-----------------------------------------------------------------
|Author: |Eggman |
|-----------+-----------------------------------------------------|
|Version: |May 19, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JM |
| | |
-----------------------------------------------------------------
Subject: Deferred Entry of Judgment: Withdrawal of Plea
HISTORY
Source: Drug Policy Alliance; Immigrant Legal Resource Center
Prior Legislation:SB 1369 (Kopp), Chapter 1132, Statutes of 1996
Support: 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; Friends Committee on Legislation of
California; Harvey Milk LGBT Democratic Club; Human
AB 1352 (Eggman ) PageB
of?
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 Board of Pharmacy;
California State Sheriffs' Association
Assembly Floor Vote: 42 - 33
PURPOSE
The purpose of this bill is to allow any person who has
successfully completed a deferred entry of judgment (DEJ)
treatment program to obtain dismissal of the plea upon which DEJ
was granted, on the basis that the guilty or no-contest plea
underlying DEJ may result in a denial of employment benefit,
license or certificate, or have adverse immigration
consequences, in conflict with the statement in the governing
statute that the plea shall not result in "denial of any
employment, benefit, license, or certificate."
Existing law:
Provides that a defendant may qualify for DEJ of specified
non-violent drug possession offenses if the following apply to
AB 1352 (Eggman ) PageC
of?
the defendant:
The defendant has no prior conviction for any offense
involving controlled substances;
The offense charged did not involve a crime of violence
or threatened violence;
There is no evidence of a violation relating to
narcotics or restricted dangerous drugs other than a
violation of the specified deferrable drug offenses;
The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed;
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;
The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense. (Pen. Code § 1000, subd. (a).)
States that a prosecutor has a duty to determine whether a
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).)
Requires that all DEJ referrals for DEJ shall 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).)
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
find that the defendant would be benefit by deferred entry of
AB 1352 (Eggman ) PageD
of?
judgment, or if the defendant does not consent to participate,
the proceedings shall continue as in any other case. Deferred
entry of judgment shall be granted for no less than 18 months,
but no longer than three years. Progress reports shall be filed
by the probation department as directed by the court. (Pen.
Code § 1000.2.)
Requires, if the defendant has performed satisfactorily in the
DEJ program, the criminal charge or charges shall be dismissed.
If the defendant does not perform satisfactorily, the court
shall find the defendant guilty pursuant to his or her plea,
enter judgment and set a sentencing hearing. (Pen. Code §
1000.3.)
States that upon successful completion of DEJ, the arrest that
led to the defendant's plea shall be deemed to have never
occurred. The defendant may state 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).)
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. The
presiding judge, the district attorney and the public defender
must agree to establish a preguilty plea diversion program. 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.)
Provides that where a defendant has fulfilled the terms of
probation, or been discharged from probation, the defendant
shall, if he or she is not then serving a sentence for any
offense, on probation for any offense, or charged with any
AB 1352 (Eggman ) PageE
of?
offense, be granted the following relief: The court shall
dismiss the conviction or allow the defendant to withdraw his or
her guilty plea. The court shall then dismiss the accusations
against the defendant. Where the person has successfully
completed probation, but he or she did not fulfill all terms of
probation throughout the probationary term, the court may grant
the relief in the interests of justice. (Pen. Code
§ 1203.4, subd. (a).)
Provides that a person who was convicted of a felony and served
a felony jail sentence pursuant to Penal Code Section 1170,
subdivision (h), may apply for dismissal of his her conviction
or withdrawal of his or her plea in the underlying case, in the
discretion of the court and in the interests of justice. (Pen.
Code § 1203.41.)
Provides that the court may only dismiss the conviction of
person who served a felony jail sentence after the lapse of one
year following the petitioner's completion of the sentence,
provided that the petitioner is not under post-release community
supervision pursuant to realignment or is not serving a sentence
for, on probation for, or charged with the commission of any
offense. (Pen. Code § 1203.41.)
Specifies that a non-citizen may be deported if he or she has
been convicted of a violation of 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).)
Provides that a defendant's plea of guilty is valid only where
it is knowingly and voluntary made. In order that a defendant's
plea be knowing, the defendant must understand and explicitly
waive his or her constitutional rights to a jury trial, confront
witnesses and the 5th Amendment privilege against
self-incrimination. The defendant may withdraw a plea that was
not knowingly and voluntarily made. (Boykin v. Alabama (1969)
395 U.S. 238; In re Tahl (1969) 1 Cal.3rd 122, 130.)
Provides that in accepting a plea of guilty or no-contest, the
court must advise the defendant that if he or she is not a
citizen, the plea may result in adverse immigration
consequences. (Pen. Cod § 1016.5) Section 1016.5 does not
AB 1352 (Eggman ) PageF
of?
refer to programs or statutes under which a defendant's arrest
or conviction would be dismissed.
Provides that in order to provide effective assistance of
counsel under the 6th Amendment, an attorney for a criminal
defendant must advise a defendant of the consequences of a plea
of guilty or no contest. Specifically, failure to advise a
defendant of the possible adverse immigration consequences of a
plea constitutes ineffective assistance of counsel that may be
prejudicial. Prejudice in this context essentially means that
in the absence of the incorrect advice, the defendant would not
have entered the plea. (Padilla v. Kentucky (2010) 130
S.Ct.1473
This bill:
Provides that 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 attests to and both of the following:
The charges were dismissed after the defendant performed
satisfactorily during the DEJ period; and,
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 inadmissible,
deportable, or subject to any other kind of adverse
immigration consequence.
Directs the Judicial Council to develop a form for use by
persons seeking the relief authorized by this bill to attest to
the information required for such relief.
Requires a defendant seeking relief under this bill to submit
documentation, as specified, of dismissal of charges pursuant to
successful completion of DEJ, in addition to attesting to
information required for relief.
Requires the court to dismiss the complaint or information
against the defendant if the defendant shows that he or she
AB 1352 (Eggman ) PageG
of?
performed satisfactorily under DEJ and that the plea underlying
DEJ may result in a denial of employment benefit, license or
certificate, or have adverse immigration consequences.
States the following legislative findings and declarations:
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 the plea underlying DEJ.
Specifically, in the case of some defendants, including
all noncitizen defendants, the disposition of the case may
cause adverse consequences, including adverse immigration
consequences.
Because of this misinformation and the potential harm of
the plea, the defendant's prior plea is invalid.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
AB 1352 (Eggman ) PageH
of?
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
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
AB 1352 (Eggman ) PageI
of?
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 state resources as U.S. citizen children go
into foster care, homes go into foreclosure, and
remaining citizen family seek public benefits.
2.True Expungement of Conviction in Contrast with Dismissal
Granted Under Penal Code Section 1203.4
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 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.
AB 1352 (Eggman ) PageJ
of?
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. 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
In a DEJ program, a defendant enters a guilty plea, but entry of
judgment on the plea is deferred pending successful completion
of a program. 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
AB 1352 (Eggman ) PageK
of?
employment benefit, license or certificate unless the defendant
consents to the release of his or her record. (Pen. Code §
1000.3.)
The most common form of DEJ allows non-violent drug offenders to
participate in drug treatment programming and probation
supervision rather than being subject to sentencing,
imprisonment and other consequences of conviction. The purpose
of dismissal upon successful completion of DEJ is to allow
offenders to avoid the adverse consequences and stigma of a
criminal conviction so that they can get or retain jobs and
become or remain productive members of society. However, a
dismissal after completion of a DEJ program for a drug offense
may subject a non-citizen to immigration consequences such as
deportation. (Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994)
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 successful completion of 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 from a Dismissed Case
This bill grants a court limited jurisdiction to accept the
withdrawal of a guilty or nolo contendere plea by a person whose
underlying case was dismissed after successful completion of
DEJ. To qualify for this relief, the defendant must show that
the plea may result in the denial or loss of any employment,
benefit, license, or certificate, including adverse immigration
consequences such as deportation.
The limited jurisdiction of a court over a dismissed case was
confirmed in the context of another drug-treatment law. In
People v. Delong (2002), 101 Cal. App. 4th 482, the defendant
AB 1352 (Eggman ) PageL
of?
successfully completed drug treatment pursuant to a SACPA<1>
program. Thereafter, her conviction was set aside and the court
dismissed the complaint against her. 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).) DeLong 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 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. Argument in Support
The American Civil Liberties Union argues in support:
AB 1352 will allow persons who have successfully
completed deferred entry of judgment for minor drug
offenses to expunge the guilty plea from their record.
AB 1352 will eliminate the harsh and unintended
federal consequences that flow from minor drug
offenses, including deportation. This bill will keep
California families together, support the law's
rehabilitation goals, and promote equal justice.
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
----------------------
<1> The Substance Abuse and Crime Prevention Act of 2000 -
Proposition 36.
AB 1352 (Eggman ) PageM
of?
deemed never to have occurred, and they will not be
denied any legal benefit based on the disposition.
Unfortunately, the dismissal of the charges following
completion of deferred entry of judgment 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.
This is particularly devastating to families in
California, which is the most immigrant-rich state in
America. One out of every four persons living in the
state is foreign-born. Half of California's children
live in households headed by at least one foreign-born
parent - and the majority of these children are U.S.
citizens. It is estimated that 50,000 parents of
California U.S. citizen children were deported in a
little over two years, leaving many children
parentless. Deportation due to minor drug offenses
destroys California families.
6. Argument in Opposition
The California District Attorneys Association argues in
opposition:
We must object, on principle, to the idea of allowing
people to withdraw pleas (some dating back nearly 20
years) that were obtained lawfully as a condition of
their participation in a deferred entry of judgment
program. California law, and the Sixth Amendment of
the Constitution, provides many safeguards to ensure
that defendants are made aware of the potential
consequences before entering a guilty plea.
Beyond the constitutional right to effective defense
counsel, who has an obligation to ensure that a
defendant understands the terms and ramifications of a
AB 1352 (Eggman ) PageN
of?
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.
-- END -