BILL NUMBER: AB 674	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Salas

                        FEBRUARY 25, 2009

   An act to add Chapter 2.97 (commencing with Section 1001.91) to
Title 6 of Part 2 of the Penal Code, relating to criminal procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 674, as introduced, Salas. Criminal procedure: veterans.
   Existing law establishes various diversion and deferred entry of
judgment programs for, among other things, substance abuse treatment.
Existing provisions of the California Constitution require a 2/3
vote of the membership of each house of the Legislature for a bill
that would exclude relevant evidence in a criminal proceeding.
   This bill would establish a deferred entry of judgment program and
a preconviction drug diversion program for veterans, as specified,
who suffer from post-traumatic stress disorder or traumatic brain
injury, as specified, and who commit specified offenses. Because this
program would provide for the exclusion of certain urine analysis
results and statements of program participants from criminal
proceedings, the bill would require a 2/3 vote.
   By imposing additional burdens on local government entities, this
bill would impose a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 2.97 (commencing with Section 1001.91) is added
to Title 6 of Part 2 of the Penal Code, to read:
      CHAPTER 2.97.  SPECIAL PROCEEDINGS IN CASES INVOLVING VETERANS


   1001.91.  (a) Except as otherwise required by the Substance Abuse
and Crime Prevention Act of 2000, this chapter shall apply whenever a
case is before any court upon an accusatory pleading charging the
defendant with a misdemeanor or felony and the defendant is a
veteran, as defined in Section 980 of the Military and Veterans Code,
who has been diagnosed with service connected post-traumatic stress
disorder or traumatic brain injury as a result of his or her military
service or who has undiagnosed symptoms of post-traumatic stress
disorder or traumatic brain injury as a result of stressors that he
or she was exposed to in a combat situation in the military service
as proven by his or her service record that includes the veteran's
service form DD214 (Certificate of Release or Discharge from Active
Duty) with Combat Infantry Badge, Combat Action Ribbon, Purple Heart,
Bronze Star, or any decoration with a "V" for valor, Silver Star,
Distinguished Service Medal, Navy Cross, Distinguished Flying Cross,
or Congressional Medal of Honor and all of the following apply:
   (1) The offense charged did not involve a crime of violence or
threatened violence.
   (2) The crime charged is not a serious felony as defined in
Section 1192.7 or 1192.8 and is not a violent felony as listed in
subdivision (c) of Section 667.5.
   (3) The defendant's record does not indicate that probation or
parole has ever been revoked without thereafter being completed.
   (4) 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.
   (5) The defendant has no prior felony conviction within five years
prior to the alleged commission of the charged offense.
   (b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to (5), inclusive, of
subdivision (a) apply to the defendant. Upon the agreement of the
prosecuting attorney, law enforcement, the public defender, and the
presiding judge of the criminal division of the superior court or a
judge designated by the presiding judge, this procedure shall be
completed as soon as possible after the initial filing of the
charges. If the defendant is found eligible, 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 deferred entry of judgment at the arraignment. If the
defendant is found ineligible for deferred entry of judgment, 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. The sole remedy of a defendant
who is found ineligible for deferred entry of judgment is a
postconviction appeal.
   (c) All referrals for deferred entry of judgment granted by the
court pursuant to this chapter shall be made only to programs that
have been certified by the county veterans service officer, or other
appropriate officer designated by the county pursuant to this
section, or to programs that provide services at no cost to the
participant and have been deemed by the court and the county 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
set forth in this subdivision.
   (d) Any defendant who is participating in a program referred to in
this section may be required to undergo analysis of his or her urine
for the purpose of testing for the presence of any drug or alcohol
as part of the program. However, urine analysis results shall not be
admissible as a basis for any new criminal prosecution or proceeding.

   1001.92.  (a) If the prosecuting attorney determines that this
chapter may be applicable to the defendant, he or she shall advise
the defendant and his or her attorney in writing of that
determination. This notification shall include the following:
   (1) A full description of the procedures for deferred entry of
judgment.
   (2) A general explanation of the roles and authorities of the
probation department, the prosecuting attorney, the program, and the
court in the process.
   (3) A clear statement that in lieu of trial, the court may grant
deferred entry of judgment with respect to any crime specified in
subdivision (a) of Section 1001.91 that is charged, provided that the
defendant pleads guilty to each charge and waives time for the
pronouncement of judgment, and that upon the defendant's successful
completion of a program, as specified in subdivision (c) of Section
1001.91, the positive recommendation of the program authority and the
motion of the prosecuting attorney, the court, or the probation
department, but no sooner than 18 months and no later than three
years from the date of the defendant's referral to the program, the
court shall dismiss the charge or charges against the defendant.
   (4) A clear statement that upon any failure of treatment or
condition under the program, or any circumstance specified in Section
1001.94, the prosecuting attorney, the probation department, or the
court on its own may make a motion to the court for entry of judgment
and the court shall render a finding of guilt to the charge or
charges pled, enter judgment, and schedule a sentencing hearing as
otherwise provided in this chapter.
   (5) An explanation of criminal record retention and disposition
resulting from participation in the deferred entry of judgment
program and the defendant's rights relative to answering questions
about his or her arrest and deferred entry of judgment following
successful completion of the program.
   (b) If the defendant consents and waives his or her right to a
speedy trial or a speedy preliminary hearing, the court may refer the
case to the probation department or the court may summarily grant
deferred entry of judgment if the defendant pleads guilty to the
charge or charges and waives time for the pronouncement of judgment.
When directed by the court, the probation department shall make an
investigation and take into consideration the defendant's age,
employment and service records, educational background, community and
family ties, prior controlled substance use, prior use of alcoholic
beverages, homelessness, treatment history, if any, demonstrable
motivation, and other mitigating factors in determining whether the
defendant is a person who would be benefited by education, treatment,
or rehabilitation. The probation department shall also determine
which programs the defendant would benefit from and which programs
would accept the defendant. The probation department shall report its
findings and recommendations to the court. The court shall make the
final determination regarding education, treatment, or rehabilitation
for the defendant. If the court determines that it is appropriate,
the court shall grant deferred entry of judgment if the defendant
pleads guilty to the charge or charges and waives time for the
pronouncement of judgment.
   (c) No statement, or any information procured therefrom, made by
the defendant to any probation officer, drug or treatment program
worker, county veterans service officer, or other assigned county
employee that is made during the course of any investigation
conducted by the probation department or treatment program pursuant
to subdivision (b), and prior to the reporting of the probation
department's findings and recommendations to the court, shall be
admissible in any action or proceeding brought subsequent to the
investigation.
   No statement, or any information procured therefrom, with respect
to the specific offense with which the defendant is charged, that is
made to any probation officer, drug or treatment program worker,
county veterans service officer, or other assigned county employee
subsequent to the granting of deferred entry of judgment, shall be
admissible in any action or proceeding, including a sentencing
hearing.
   (d) A defendant's plea of guilty pursuant to this chapter shall
not constitute a conviction for any purpose unless a judgment of
guilty is entered pursuant to Section 1001.94.
   1001.93.  (a) 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 under this
chapter and if the defendant should be granted deferred entry of
judgment. 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.
   (b) At the time that deferred entry of judgment is granted, any
bail bond or undertaking, or deposit in lieu thereof, on file by or
on behalf of the defendant shall be exonerated, and the court shall
enter an order so directing.
   (c) The period during which deferred entry of judgment is granted
shall be for no less than 18 months and no longer than three years.
Progress reports shall be filed by the probation department with the
court as directed by the court.
   1001.94.  (a) If it appears to the prosecuting attorney, the
court, or the probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
education, treatment, or rehabilitation, is convicted of a
misdemeanor that reflects the defendant's propensity for violence, is
convicted of a felony, or has engaged in criminal conduct rendering
him or her unsuitable for deferred entry of judgment, the prosecuting
attorney, the court on its own, or the probation department may make
a motion for entry of judgment. After notice to the defendant, the
court shall hold a hearing to determine whether judgment should be
entered.
   (b) If the court finds that the defendant is not performing
satisfactorily in the assigned program, is not benefiting from
education, treatment, or rehabilitation, has been convicted of a
crime as indicated above, or has engaged in criminal conduct
rendering him or her unsuitable for deferred entry of judgment, the
court shall render a finding of guilt to the charge or charges pled,
enter judgment, and schedule a sentencing hearing as otherwise
provided in this chapter.
   (c) If the defendant has performed satisfactorily during the
period in which deferred entry of judgment was granted, at the end of
that period, the criminal charge or charges shall be dismissed.
Prior to dismissing the charge or charges or rendering a finding of
guilt and entering judgment, the court shall consider the defendant's
ability to pay and whether the defendant has paid a diversion
restitution fee pursuant to Section 1001.90, if ordered, and has met
his or her financial obligation to the program, if any. As provided
in Section 1203.1b, the defendant shall reimburse the probation
department for the reasonable cost of any program investigation or
progress report filed with the court as directed pursuant to Sections
1001.91 and 1001.92.
   1001.95.  (a) Any record filed with the Department of Justice
shall indicate the disposition in those cases deferred pursuant to
this chapter. Upon successful completion of a deferred entry of
judgment 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 in subdivision (b). A
record pertaining to an arrest resulting in successful completion of
a deferred entry of judgment 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.
   (b) The defendant shall be advised that, regardless of his or her
successful completion of the deferred entry of judgment program, the
arrest upon which the judgment was deferred may be disclosed by the
Department of Justice in response to any peace officer application
request and that, notwithstanding subdivision (a), this section does
not relieve him or her of the obligation to disclose the arrest in
response to any direct question contained in any questionnaire or
application for a position as a peace officer, as defined in Section
830.
   1001.96.  (a) Except as otherwise required by the Substance Abuse
and Crime Prevention Act of 2000, the presiding judge of the superior
court, or a judge designated by the presiding judge, together with
the district attorney and the public defender, may agree in writing
to establish and conduct a preguilty plea drug court program pursuant
to the provisions of this chapter, wherein criminal proceedings are
suspended without a plea of guilty for designated defendants. The
drug court program shall include a regimen of graduated sanctions and
rewards, individual and group therapy, urine analysis testing
commensurate with treatment needs, close court monitoring and
supervision of progress, educational or vocational counseling as
appropriate, and other requirements as agreed to by the presiding
judge or his or her designee, the district attorney, and the public
defender. If there is no agreement in writing for a preguilty plea
program by the presiding judge or his or her designee, the district
attorney, and the public defender, the program shall be operated as a
deferred entry of judgment program as provided in this chapter.
   (b) The provisions of Sections 1001.94 and 1001.95 regarding
satisfactory and unsatisfactory performance in a program shall apply
to preguilty plea programs. If the court finds that the defendant is
not performing satisfactorily in the assigned program, is not
benefiting from education, treatment, or rehabilitation, has been
convicted of a crime specified in Section 1000.3, or has engaged in
criminal conduct rendering him or her unsuitable for the preguilty
plea program, the court shall reinstate the criminal charge or
charges. 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 and the provisions of
Section 1001.95 shall apply.
  SEC. 2.  If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
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