BILL ANALYSIS Ó
AB 1352
Page 1
(Without Reference to File)
CONCURRENCE IN SENATE AMENDMENTS
AB
1352 (Eggman)
As Amended September 9, 2015
Majority vote
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|ASSEMBLY: | |(May 4, 2015) |SENATE: | |(September 11, |
| |42-33 | | | |2015) |
| | | | | | |
| | | | | | |
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(vote not available)
Original Committee Reference: PUB. S.
SUMMARY: Requires the court to permit a defendant, who was
granted deferred entry of judgment (DEJ) on or after January 1,
1997, and who has performed satisfactorily during the period in
which DEJ was granted and for whom the criminal charge or
charges were dismissed, to withdraw his or her plea and enter a
plea of not guilty.
The Senate amendments:
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1)Provide if court records showing the case resolution are no
longer available, the defendant's declaration, under penalty
of perjury, that the charges were dismissed after he or she
completed the requirements for DEJ, shall be presumed to be
true if the defendant has submitted a copy of his or her state
summary criminal history information maintained by the
Department of Justice that either shows that the defendant
successfully completed the deferred entry of judgment program
or that the record is incomplete in that it does not show a
final disposition.
2)State that for purposes of this bill, a final disposition
means that the state summary criminal history information
shows either a dismissal after completion of the program or a
sentence after termination of the program.
3)Delete the provision that required the defendant to submit
documentation of the dismissal of charges or satisfactory
participation in, or completion of diversion programming.
4)Delete the provision that required Judicial Council to develop
the necessary form to be completed and submitted by the
defendant.
5)Make technical, nonsubstantive changes.
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
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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;
f) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense.
1)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.
2)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
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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.
3)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.
AS PASSED BY THE ASSEMBLY, this bill required 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:
1)Provided in any case in which a defendant was granted 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
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noncitizen defendant to potentially be found inadmissable,
deportable, or subject to any other kind of adverse
immigration consequence.
2)Required the court to dismiss the complaint or information
against the defendant.
3)Stated 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)Declared based upon this misinformation and the potential
harm, the defendant's prior plea is invalid.
FISCAL EFFECT: 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
COMMENTS: 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 [Section] 1000.4 in deciding to enter a guilty
plea.
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"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:
0002428