BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1352|
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THIRD READING
Bill No: AB 1352
Author: Eggman (D)
Amended: 5/19/15 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 7/14/15
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 42-33, 5/4/15 - See last page for vote
SUBJECT: Deferred entry of judgment: withdrawal of plea
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 allows 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."
ANALYSIS:
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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 controlled substance
convictions;
b) The offense charged did not of violence or threatened
violence;
c) There is no evidence of a drug violation other than a
violation of the specified deferrable drug offenses;
d) The defendant's probation or parole has never been
revoked without thereafter being completed;
e) The defendant's record does not indicate that he or
she has participated in drug diversion or DEJ 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. (Pen. Code § 1000, subd. (a).)
1) 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).)
2) 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
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meets the specified criteria. (Pen. Code § 1000, subd. (c).)
3) Requires the court to hold a hearing and, after
consideration of any information relevant to its decision, to
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 benefit by DEJ, or if
the defendant does not consent to participate, the
proceedings shall continue as in any other case. DEJ 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.)
4) 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.)
5) 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 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. (Pen. Code §
1000.4, subd. (a).)
6) 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.)
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7) 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
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).)
8) 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.)
9) Provides that the court may not dismiss the conviction of a
person who served a felony jail sentence until one year after
the petitioner's completion of the sentence, provided that
the petitioner is not under community supervision or serving
a sentence for a criminal offense. (Pen. Code § 1203.41.)
10)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, other than possession for one's own
use of 30 grams or less of marijuana. (8 U.S.C.S. § 1227,
subd. (a)(2)(B)(i).)
11)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 Fifth 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.)
12)Provides that in accepting a plea of guilty or no-contest,
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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)
13)Provides that an attorney for a criminal defendant must
advise a defendant of the consequences of a plea of guilty or
no contest, including adverse immigration consequences.
(Padilla v. Kentucky (2010) 130 S.Ct.1473)
This bill:
1) Provides that in any case in which a defendant was 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 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 inadmissible,
deportable, or subject to any other kind of adverse
immigration consequence.
2) 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.
3) 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.
4) Requires the court to dismiss the complaint or information
against the defendant if the defendant shows that he or she
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.
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5) States the following legislative findings and declarations:
a) 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.
b) Specifically, in the case of some defendants,
including all noncitizen defendants, the disposition of
the case may cause adverse consequences, including adverse
immigration consequences.
c) Because of this misinformation and the potential harm
of the plea, the defendant's prior plea is invalid.
Background
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
may 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. However, 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 the case
was dismissed. The records remain fully a public document.
Further, 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 order to constitute an actual expungement, the withdrawal of
the plea and dismissal of the case must not be allowed to be
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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, this
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.
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
employment benefit, license or certificate unless the defendant
consents to the release of his or her record. (Pen. Code §
1000.3.)
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
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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.)
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee, potentially
significant increase in trial court costs (General Fund*) for
new petitions to dismiss pleas of guilty and nolo contendere
submitted for cases granted DEJ retroactive to January 1, 1997.
*Trial Court Trust Fund
SUPPORT: (Verified8/28/15)
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)
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
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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 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
OPPOSITION: (Verified8/28/15)
California District Attorneys Association
California State Board of Pharmacy
California State Sheriffs' Association
ASSEMBLY FLOOR: 42-33, 5/4/15
AYES: Alejo, Bloom, Bonta, Brown, Burke, Calderon, Chau, Chiu,
Chu, Cooley, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo
Garcia, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández,
Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina,
Mullin, Nazarian, O'Donnell, Quirk, Rendon, Rodriguez, Salas,
Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood,
AB 1352
Page 10
Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Bonilla, Brough,
Chang, Chávez, Cooper, Dababneh, Beth Gaines, Gallagher,
Gatto, Gray, Grove, Hadley, Harper, Irwin, Jones, Kim, Lackey,
Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte,
Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Campos, Dahle, Daly, Perea, Ridley-Thomas
Prepared by:Jerome McGuire / PUB. S. /
8/31/15 18:48:03
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