Existing law allows individuals charged with specified crimes to qualify for deferred entry of judgment. A defendant qualifies if he or she has no conviction for any offense involving controlled substances, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, the defendants record does not indicate that probation or parole has ever been revoked without being completed, and the defendants record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years prior to the alleged commission of the charged offense.

Under the existing deferred entry of judgment program, an eligible defendant may have entry of judgment deferred, upon pleading guilty to the offenses charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not perform satisfactorily in the program, does not benefit from the program, is convicted of specified crimes, or engages in criminal activity rendering him or her unsuitable for deferred entry of judgment, the defendants guilty plea is entered and the court enters judgment and proceeds to schedule a sentencing hearing. If the defendant completes the program, the criminal charges are dismissed. Existing law allows the presiding judge of the superior court, with the district attorney and public defender, to establish a pretrial diversion drug program.

This bill would make the deferred entry of judgment program a pretrial diversion program. The bill would make a defendant qualified for the pretrial diversion program if there is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offense that qualifies him or her for diversion, the charged offense did not involve violence, there is no evidence within the past 5 years of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, and the defendant has no prior conviction for a felony within 5 years prior to the alleged commission of the charged offense.

Under the pretrial diversion program created by this bill, a qualifying defendant would enter a plea of not guilty and waive his or her right to a trial by jury, and proceedings would be suspended in order for the defendant to enter a drug treatment program for 12 to 18 months, or longer if requested by the defendant with good cause. The bill would require the court, if the defendant does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and reinstate the criminal proceedings. The bill would require the criminal charges to be dismissed if the defendant completes the program.

This bill would incorporate additional changes to Section 1000.4 of the Penal Code proposed by SB 393 to be operative only if this bill and SB 393 are enacted and this bill is enacted last.

Existing law allows individuals charged with specified crimes to qualify for deferred entry of judgment. A defendant qualifies if he or she has no conviction for any offense involving controlled substances, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, the defendants record does not indicate that probation or parole has ever been revoked without being completed, and the defendants record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years prior to the alleged commission of the charged offense.

Under the existing deferred entry of judgment program, an eligible defendant may have entry of judgment deferred, upon pleading guilty to the offenses charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not perform satisfactorily in the program, does not benefit from the program, is convicted of specified crimes, or engages in criminal activity rendering him or her unsuitable for deferred entry of judgment, the defendants guilty plea is entered and the court enters judgment and proceeds to schedule a sentencing hearing. If the defendant completes the program, the criminal charges are dismissed. Existing law allows the presiding judge of the superior court, with the district attorney and public defender, to establish a pretrial diversion drug program.

This bill would make the deferred entry of judgment program a pretrial diversion program. The bill would make a defendant qualified for the pretrial diversion program if there is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offense that qualifies him or her for diversion, the charged offense did not involve violence, there is no evidence within the past 5 years of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, and the defendant has no prior conviction for a felony within 5 years prior to the alleged commission of the charged offense.

Under the pretrial diversion program created by this bill, a qualifying defendant would enter a plea of not guilty and waive his or her right to a trial by jury, and proceedings would be suspended in order for the defendant to enter a drug treatment program for 12 to 18 months, or longer if requested by the defendant with good cause. The bill would require the court, if the defendant does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and reinstate the criminal proceedings. The bill would require the criminal charges to be dismissed if the defendant completes the program.

This bill would incorporate additional changes to Section 1000.4 of the Penal Code proposed by SB 393 to be operative only if this bill and SB 393 are enacted and this bill is enacted last.

Existing law allows individuals charged with specified crimes to qualify for deferred entry of judgment. A defendant qualifies if he or she has no conviction for any offense involving controlled substances, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, the defendants record does not indicate that probation or parole has ever been revoked without being completed, and the defendants record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years prior to the alleged commission of the charged offense.

Under the existing deferred entry of judgment program, an eligible defendant may have entry of judgment deferred, upon pleading guilty to the offenses charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not perform satisfactorily in the program, does not benefit from the program, is convicted of specified crimes, or engages in criminal activity rendering him or her unsuitable for deferred entry of judgment, the defendants guilty plea is entered and the court enters judgment and proceeds to schedule a sentencing hearing. If the defendant completes the program, the criminal charges are dismissed. Existing law allows the presiding judge of the superior court, with the district attorney and public defender, to establish a pretrial diversion drug program.

This bill would make the deferred entry of judgment program a pretrial diversion program. The bill would make a defendant qualified for the pretrial diversion program if there is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offense that qualifies him or her for diversion, the charged offense did not involve violence, there is no evidence within the past 5 years of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, and the defendant has no prior conviction for a felony within 5 years prior to the alleged commission of the charged offense.

Under the pretrial diversion program created by this bill, a qualifying defendant would enter a plea of not guilty and waive his or her right to a trial by jury, and proceedings would be suspended in order for the defendant to enter a drug treatment program for 12 to 18 months, or longer if requested by the defendant with good cause. The bill would require the court, if the defendant does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and reinstate the criminal proceedings. The bill would require the criminal charges to be dismissed if the defendant completes the program.

Existing law allows individuals charged with specified crimes to qualify for deferred entry of judgment. A defendant qualifies if he or she has no conviction for any offense involving controlled substances, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, the defendants record does not indicate that probation or parole has ever been revoked without being completed, and the defendants record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years prior to the alleged commission of the charged offense.

Under the existing deferred entry of judgment program, an eligible defendant may have entry of judgment deferred, upon pleading guilty to the offenses charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not perform satisfactorily in the program, does not benefit from the program, is convicted of specified crimes, or engages in criminal activity rendering him or her unsuitable for deferred entry of judgment, the defendants guilty plea is entered and the court enters judgment and proceeds to schedule a sentencing hearing. If the defendant completes the program, the criminal charges are dismissed. Existing law allows the presiding judge of the superior court, with the district attorney and public defender, to establish a pretrial diversion drug program.

This bill would make the deferred entry of judgment program a pretrial diversion program. The bill would make a defendant qualified for the pretrial diversion program if there is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offense that qualifies him or her for diversion, the charged offense did not involve violence, there is no evidence within the past 5 years of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, and the defendant has no prior conviction for a serious or violent felony within 5 years prior to the alleged commission of the charged offense.

Under the pretrial diversion program created by this bill, a qualifying defendant would enter a plea of not guilty, guilty and waive his or her right to a trial by jury, and proceedings would be suspended in order for the defendant to enter a drug treatment program for 6 months to one year, 12 to 18 months, or longer if requested by the defendant with good cause. The bill would require the court, if the defendant does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and reinstate the criminal proceedings. The bill would require the criminal charges to be dismissed if the defendant completes the program.

Existing law allows individuals charged with specified crimes to qualify for deferred entry of judgment. A defendant qualifies if he or she has no conviction for any offense involving controlled substances, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, the defendants record does not indicate that probation or parole has ever been revoked without being completed, and the defendants record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years prior to the alleged commission of the charged offense.

Under the existing deferred entry of judgment program, an eligible defendant may have entry of judgment deferred, upon pleading guilty to the offenses charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not perform satisfactorily in the program, does not benefit from the program, is convicted of specified crimes, or engages in criminal activity rendering him or her unsuitable for deferred entry of judgment, the defendants guilty plea is entered and the court enters judgment and proceeds to schedule a sentencing hearing. If the defendant completes the program, the criminal charges are dismissed. Existing law allows the presiding judge of the superior court, with the district attorney and public defender, to establish a pretrial diversion drug program.

This bill would make the deferred entry of judgment program a pretrial diversion program. The bill would make that a defendant qualifie for the pretrial diversion program if he or she has no prior conviction within 5 years prior to the alleged commission of the charged offense for any offense involving controlled substances other than the offense that qualifies him or her for diversion, a defendant qualified for the pretrial diversion program if there is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offense that qualifies him or her for diversion, the charged offense did not involve violence, there is no evidence within the past 5 years of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, and the defendant has no prior conviction for a serious or violent felony within 5 years prior to the alleged commission of the charged offense.

Under the pretrial diversion program created by this bill, a qualifying defendant would enter a plea of not guilty, and proceedings would be suspended in order for the defendant to enter a drug treatment program for 6 months to one year, or longer if requested by the defendant with good cause. The bill would require the court, if the defendant does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and reinstate the criminal proceedings. The bill would require the criminal charges to be dismissed if the defendant completes the program.

Existing law allows individuals charged with specified crimes to qualify for deferred entry of judgment. A defendant qualifies if he or she has no conviction for any offense involving controlled substances, the charged offense did not involve violence, there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, the defendants record does not indicate that probation or parole has ever been revoked without being completed, and the defendants record does not indicate that he or she has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years prior to the alleged commission of the charged offense.

Under the existing deferred entry of judgment program, an eligible defendant may have entry of judgment deferred, upon pleading guilty to the offenses charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not perform satisfactorily in the program, does not benefit from the program, is convicted of specified crimes, or engages in criminal activity rendering him or her unsuitable for deferred entry of judgment, the defendants guilty plea is entered and the court enters judgment and proceeds to schedule a sentencing hearing. If the defendant completes the program, the criminal charges are dismissed. Existing law allows the presiding judge of the superior court, with the district attorney and public defender, to establish a pretrial diversion drug program.

This bill would make the deferred entry of judgment program a pretrial diversion program. The bill would make that a defendant qualifie for the pretrial diversion program if he or she has no prior conviction within 5 years prior to the alleged commission of the charged offense for any offense involving controlled substances other than the offense that qualifies him or her for diversion, the charged offense did not involve violence, there is no evidence within the past 5 years of a violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, and the defendant has no prior conviction for a serious or violent felony within 5 years prior to the alleged commission of the charged offense.

Under the pretrial diversion program created by this bill, a qualifying defendant would enter a plea of not guilty, and proceedings would be suspended in order for the defendant to enter a drug treatment program for 6 months to one year, or longer if requested by the defendant with good cause. The bill would require the court, if the defendant does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and reinstate the criminal proceedings. The bill would require the criminal charges to be dismissed if the defendant completes the program.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 208

Author:(Eggman)

As Amended Ver:September 8, 2017

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Converts the existing deferred entry of judgment (DEJ) program for specified drug-possession offenses into a pretrial drug diversion program.

The Senate amendments:

1. Limit eligibility in the program to those defendants who do not have any felony convictions within the five preceding years, rather than those that do not have serious or violent felony convictions.
2. Extend the treatment program timeline to 12 months to 18 months.
3. Require the defendant to waive his or her right to a jury trial in order to participate in the program.
4. Double join this bill with SB 393 (Lara) of the current legislative session, to avoid chaptering out issues.

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:
   1. The defendant has no prior conviction for any offense involving controlled substances;
   2. The offense charged did not involve a crime of violence or threatened violence;
   3. There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the specified deferrable drug offenses;
   4. The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed;
   5. 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;
   6. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.
2. Specifies the offenses that are eligible for DEJ, which include possession for personal use of specified controlled substances, possession of certain drug paraphernalia, being under the influence of a controlled substance, cultivation of marijuana for personal use, and being present in a place where controlled substances are being used.
3. Requires a prosecutor 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.
4. 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 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. Required, 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. Stated 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 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.
7. Authorized counties to establish and conduct a pre-guilty 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 satisfactorily during the period of the preguilty plea program, at the end of that period, the criminal charge or charges shall be dismissed.

AS PASSED BY THE ASSEMBLY, this bill:

1. Changed the existing DEJ program for specified drug-possession offenses into a pretrial drug diversion program.
2. Established the following eligibility requirements for the pretrial drug diversion program:
   1. The defendant must not have a prior conviction for a drug offense within five years other than those offense which may be diverted;
   2. The charged offense did not involve violence or a threat of violence;
   3. There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than those offenses which may be diverted; and,
   4. The defendant must not have a prior serious or violent felony, as specified, within the past five years.
3. Retained provisions in current DEJ law that are consistent with pretrial diversion.
4. Required eligible defendants to be advised of the procedures for pretrial diversion, including that the defendant will be waiving the right to a speedy preliminary hearing and speedy trial; and that if the defendant does not perform satisfactorily in the program, the court shall reinstate the charges and schedule the matter for further proceedings.
5. Provided that a defendant's participation in pretrial diversion does not constitute a conviction or an admission of guilt for any purpose.
6. Set the length of the diversion program from six months to one year, but allows the court to extend that time for good cause.
7. Stated that if the prosecutor, the court, or the probation department believes the defendant is performing unsatisfactorily, or that he or she has been convicted of a felony or an offense reflecting propensity for violence, then the prosecutor, the court, or the probation department may move to terminate diversion.
8. Provided that if diversion is terminated, either due to unsatisfactory performance or because of specified convictions, then the court shall schedule the matter for further proceedings.
9. Provided for dismissal of charges if the defendant completes pretrial diversion, and deems arrest for the charges never to have occurred.
10. Allowed a person participating in a diversion program to use medications to treat substance-abuse disorders under the direction of a licensed health care practitioner if the participant allows release of his or her medical records to the court for the limited purpose of determining whether he or she is using the medications under the direction of a licensed professional and is complying with the rules of the diversion program.

FISCAL EFFECT: According to the Senate Appropriations Committee, potential, unknown increase in state trial court costs (General Fund*) to the extent additional and/or more lengthy trials result than otherwise would have occurred under the existing DEJ program. The removal of the requirement to plead guilty in order to qualify for a treatment program potentially could result in additional defendants who enter a not guilty plea but are unsuccessful in a diversion program and who subsequently require a more lengthy process to adjudicate the charge than otherwise would have been required under the DEJ process after a guilty plea was entered. By further limiting which defendants are eligible for participation in the program (i.e., to those individuals who do not have a felony conviction within the preceding five years), the amendments could reduce the number of individuals who would be unsuccessful in a diversion program that would lead to additional or more lengthy hearings and trials for the court to adjudicate the charges.

*Trial Court Trust Fund

COMMENTS: According to the author, "This bill seeks to limit harsh consequences to immigrants by changing the current process for nonviolent, misdemeanor drug offenses from deferred entry of judgment (DEJ) to pretrial diversion. While the current DEJ process eliminates a conviction if the defendant successfully completes DEJ, the defendant may still face federal consequences, including deportation if the defendant is undocumented, or the prohibition from becoming a U.S. [United States] citizen if the defendant is a legal permanent resident. This is a systemic injustice to immigrants to this country, but even U.S. citizens may face federal consequences, including loss of federal housing and educational benefits. This bill will keep families together, help people retain eligibility for U.S. citizenship, and also preserve access to other benefits for those who qualify."

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0002254

 THIRD READING  

Bill No: AB 208

Author:

Amended: 9/8/17 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-2, 7/11/17

AYES: Skinner, Bradford, Mitchell, Wiener

NOES: Anderson, Stone

NO VOTE RECORDED: Jackson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 46-27, 6/1/17 - See last page for vote

SUBJECT:

SOURCE: American Civil Liberties Union of California

California Immigrant Policy Center

Coalition for Humane Immigrant Rights

Drug Policy Alliance

Immigrant Legal Resource Center

Mexican American Legal Defense and Education Fund

DIGEST:

This bill converts the existing deferred entry of judgment (DEJ) program for specified drug offenses into a pretrial drug diversion program.

Senate Floor Amendments of 9/8/17 provide that successful completion of a pretrial diversion program does not prohibit specified agencies from taking disciplinary action against a licensee or from denying a license for professional misconduct, notwithstanding that evidence of the misconduct is contained in a record pertaining to an arrest leading to successful completion of a pretrial diversion program; allow specified licensing agencies to request and receive records regarding referral to, participation in, successful completion of, and termination from, diversion programs; require that defendants be advised that law enforcement agencies will be able to access and use sealed records related to sealed arrests regardless of the defendant’s successful completion of a pretrial diversion program; and include double-jointing language to address potential chaptering issues between this bill and SB 393 (Lara).

ANALYSIS:

Existing law:

1. Provides that a defendant may qualify for DEJ for specified non-violent drug offenses if the following apply to the defendant:
   
   1. The defendant has no prior conviction for any offense involving controlled substances;
      
   2. The offense charged did not involve a crime of violence or threatened violence;
      
   3. There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the specified deferrable drug offenses;
      
   4. The defendant’s record does not indicate that probation or parole has ever been revoked without thereafter being completed;
      
   5. 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;
      
   6. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (Pen. Code, § 1000, subd. (a).)
      
2. Specifies the offenses that are eligible for DEJ, which include possession for personal use of specified controlled substances, possession of certain drug paraphernalia, being under the influence of a controlled substance, cultivation of marijuana for personal use, and being present in a place where controlled substances are being used. (Pen. Code, 1000, subd. (a).)
   
3. Requires a prosecutor to review files to decide whether the defendant is eligible for DEJ. If the defendant is found eligible, the prosecuting attorney is required to file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and is required to 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).)
   
4. 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. (Pen. Code, § 1000, subd. (c).)
   
5. 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 deem the defendant a person who would be benefited by DEJ, or if the defendant does not consent to participate, the proceedings shall continue as in any other case. The period during which DEJ is granted shall be for no less than 18 months nor longer than three years. The probation department is required to file progress reports with the court as directed by the court. (Pen. Code, § 1000.2.)
   
6. 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, the prosecuting attorney, the court, or the probation department may make a motion for entry of judgment. After notice to the defendant, the court is required to hold a hearing to determine whether judgment should be entered. (Pen. Code, § 1000.3.)
7. Provides that if the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or the court finds that the defendant has been convicted of a misdemeanor that reflects the defendant’s propensity for violence or has been convicted of a felony, or that the defendant has engaged in criminal conduct rendering him or her unsuitable for DEJ, 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 the Penal Code. (Pen. Code, § 1000.3.)
   
8. Provides 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. (Pen. Code, § 1000.4, subd. (a).)
9. 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 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. (Pen. Code, § 1000.5.)

This bill:

1. Changes the existing deferred entry of judgment (DEJ) program for specified drug offenses into a pretrial drug diversion program.
2. Establishes the following eligibility requirements for the pretrial drug diversion program:
   
   1. The defendant must not have a prior conviction for a drug offense within five years other than those offenses which may be diverted;
      
   2. The charged offense did not involve violence or a threat of violence;
      
   3. There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than those offenses which may be diverted; and,
      
   4. The defendant must have no prior felony conviction within the past five years.
      
3. Retains provisions in current DEJ law that are consistent with pretrial diversion.
   
4. Requires eligible defendants to be advised of the procedures for pretrial diversion, including that the defendant will be waiving the right to a speedy preliminary hearing, speedy trial, and to a trial by jury; that if the defendant does not perform satisfactorily in the program, the prosecuting attorney, probation department, or court may make a motion to terminate pretrial diversion and schedule the matter for further proceedings; and an explanation of criminal record retention and disposition resulting from participation in the pretrial diversion program and the defendant’s rights relative to answering questions about his or her arrest and pretrial diversion following successful completion of the program.
   
5. Provides that a defendant’s participation in pretrial diversion does not constitute a conviction or an admission of guilt for any purpose.
   
6. Sets the length of the pretrial diversion program from 12 months to 18 months, but allows the court to extend that time for good cause.
   
7. Provides that the prosecutor, the court, or the probation department may move to terminate diversion if the defendant is performing unsatisfactorily, or he or she has been convicted of a felony or an offense reflecting propensity for violence.
   
8. Provides that if pretrial diversion is terminated, either due to unsatisfactory performance or because of specified convictions, then the court shall schedule the matter for further proceedings.
   
9. Provides for dismissal of charges if the defendant completes pretrial diversion, and deems arrest for the charges never to have occurred.
   
10. Allows a person participating in a pretrial diversion program to use medications to treat substance use disorders under the direction of a licensed health care practitioner if the participant allows release of his or her medical records to the court for the limited purpose of determining whether he or she is using the medications under the direction of a licensed health care practitioner and is complying with the rules of the pretrial diversion program.
11. Makes other technical and conforming changes.

Background

DEJ and Pretrial Diversion: Under existing law, a defendant charged with violations of certain specified drug offenses may be eligible to participate in a DEJ program if he or she meets specified criteria. (Pen. Code, §§ 1000 et seq.) With DEJ, a defendant must enter a guilty plea, and entry of judgment on the defendant’s guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced. If the defendant successfully completes DEJ, the arrest is deemed to never have occurred and 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 pretrial diversion for the offense.

Pretrial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. Pretrial diversion also requires the defendant to successfully complete a program and other conditions imposed by the court. Unlike DEJ, however, if a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense.

Prior to 1997, the program pursuant to (Penal Code § 1000 et seq.) was a pretrial diversion program. SB 1369 (Kopp, Chapter 1132, Statutes of 1996) changed the diversion program to a DEJ program.

Implications for Immigration Law: Diversion of an offense is preferable to DEJ in order to avoid adverse immigration consequences because the defendant is not required to plead guilty in order to participate in the program. Having a conviction for possession of a controlled substance, even if it has been dismissed, could initiate deportation proceedings or prevent a person from becoming a U.S. citizen. (Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994) 36 F3d. 801.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

Potential, unknown increase in state trial court costs (General Fund*) to the extent additional and/or more lengthy trials result than otherwise would have occurred under the existing DEJ program. The removal of the requirement to plead guilty in order to qualify for a treatment program potentially could result in additional defendants who enter a not guilty plea but are unsuccessful in a diversion program and who subsequently require a more lengthy process to adjudicate the charge than otherwise would have been required under the DEJ process after a guilty plea was entered. By further limiting which defendants are eligible for participation in the program (i.e., to those individuals who do not have a felony conviction within the preceding five years), the amendments could reduce the number of individuals who would be unsuccessful in a diversion program that would lead to additional or more lengthy hearings and trials for the court to adjudicate the charges.

*Trial Court Trust Fund

SUPPORT: (Verified 9/8/17)

American Civil Liberties Union of California (co-source)

California Immigrant Policy Center (co-source)

Coalition for Humane Immigrant Rights (co-source)

Drug Policy Alliance (co-source)

Immigrant Legal Resource Center (co-source)

Mexican American Legal Defense and Education Fund (co-source)

Alameda County Public Defender

Asian Americans Advancing Justice – California

California Access Coalition

California Attorneys for Criminal Justice

California Council of Community Behavioral Health Agencies

California Public Defenders Association

California Society of Addiction Medicine

California Youth Empowerment Network

Californians for Safety and Justice

County Behavioral Health Directors Association of California

Courage Campaign

Ella Baker Center for Human Rights

Human Impact Partners

Legal Services for Prisoners with Children

Mental Health America of California 

National Association of Social Workers, California Chapter

Southern California Coalition

Students for Sensible Drug Policy

United Food and Commercial Workers, Western States Council

OPPOSITION: (Verified 9/11/17)

California District Attorneys Association

Respiratory Care Board of California

San Diego County District Attorney

ASSEMBLY FLOOR: 46-27, 6/1/17

AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Chau, Chávez, Chiu, Chu, Dababneh, Daly, Eggman, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Ridley-Thomas, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Cervantes, Chen, Cunningham, Dahle, Flora, Fong, Gallagher, Gray, Harper, Kiley, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Calderon, Choi, Cooley, Cooper, Frazier, Muratsuchi, Rodriguez

Prepared by: Stephanie Jordan / PUB. S. /

9/11/17 16:45:10

**** END ****

 THIRD READING  

Bill No: AB 208

Author:

Amended: 9/1/17 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-2, 7/11/17

AYES: Skinner, Bradford, Mitchell, Wiener

NOES: Anderson, Stone

NO VOTE RECORDED: Jackson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 46-27, 6/1/17 - See last page for vote

SUBJECT: Deferred entry of judgment: pretrial diversion

SOURCE: American Civil Liberties Union of California

California Immigrant Policy Center

Coalition for Humane Immigrant Rights

Drug Policy Alliance

Immigrant Legal Resource Center

Mexican American Legal Defense and Education Fund

DIGEST:

This bill converts the existing deferred entry of judgment (DEJ) program for specified drug offenses into a pretrial drug diversion program.

ANALYSIS:

Existing law:

1. Provides that a defendant may qualify for DEJ for specified non-violent drug offenses if the following apply to the defendant:
   
   1. The defendant has no prior conviction for any offense involving controlled substances;
      
   2. The offense charged did not involve a crime of violence or threatened violence;
      
   3. There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the specified deferrable drug offenses;
      
   4. The defendant’s record does not indicate that probation or parole has ever been revoked without thereafter being completed;
      
   5. 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;
      
   6. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (Pen. Code, § 1000, subd. (a).)
      
2. Specifies the offenses that are eligible for DEJ, which include possession for personal use of specified controlled substances, possession of certain drug paraphernalia, being under the influence of a controlled substance, cultivation of marijuana for personal use, and being present in a place where controlled substances are being used. (Pen. Code, 1000, subd. (a).)
   
3. Requires a prosecutor to review files to decide whether the defendant is eligible for DEJ. If the defendant is found eligible, the prosecuting attorney is required to file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and is required to 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).)
   
4. 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. (Pen. Code, § 1000, subd. (c).)
   
5. 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 deem the defendant a person who would be benefited by DEJ, or if the defendant does not consent to participate, the proceedings shall continue as in any other case. The period during which DEJ is granted shall be for no less than 18 months nor longer than three years. The probation department is required to file progress reports with the court as directed by the court. (Pen. Code, § 1000.2.)
   
6. 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, the prosecuting attorney, the court, or the probation department may make a motion for entry of judgment. After notice to the defendant, the court is required to hold a hearing to determine whether judgment should be entered. (Pen. Code, § 1000.3.)
7. Provides that if the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or the court finds that the defendant has been convicted of a misdemeanor that reflects the defendant’s propensity for violence or has been convicted of a felony, or that the defendant has engaged in criminal conduct rendering him or her unsuitable for DEJ, 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 the Penal Code. (Pen. Code, § 1000.3.)
   
8. Provides 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. (Pen. Code, § 1000.4, subd. (a).)
9. 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 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. (Pen. Code, § 1000.5.)

This bill:

1. Changes the existing deferred entry of judgment (DEJ) program for specified drug offenses into a pretrial drug diversion program.
2. Establishes the following eligibility requirements for the pretrial drug diversion program:
   
   1. The defendant must not have a prior conviction for a drug offense within five years other than those offenses which may be diverted;
      
   2. The charged offense did not involve violence or a threat of violence;
      
   3. There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than those offenses which may be diverted; and,
      
   4. The defendant must have no prior felony conviction within the past five years.
      
3. Retains provisions in current DEJ law that are consistent with pretrial diversion.
   
4. Requires eligible defendants to be advised of the procedures for pretrial diversion, including that the defendant will be waiving the right to a speedy preliminary hearing, speedy trial, and to a trial by jury; that if the defendant does not perform satisfactorily in the program, the prosecuting attorney, probation department, or court may make a motion to terminate pretrial diversion and schedule the matter for further proceedings; and an explanation of criminal record retention and disposition resulting from participation in the pretrial diversion program and the defendant’s rights relative to answering questions about his or her arrest and pretrial diversion following successful completion of the program.
   
5. Provides that a defendant’s participation in pretrial diversion does not constitute a conviction or an admission of guilt for any purpose.
   
6. Sets the length of the pretrial diversion program from 12 months to 18 months, but allows the court to extend that time for good cause.
   
7. Provides that the prosecutor, the court, or the probation department may move to terminate diversion if the defendant is performing unsatisfactorily, or he or she has been convicted of a felony or an offense reflecting propensity for violence.
   
8. Provides that if pretrial diversion is terminated, either due to unsatisfactory performance or because of specified convictions, then the court shall schedule the matter for further proceedings.
   
9. Provides for dismissal of charges if the defendant completes pretrial diversion, and deems arrest for the charges never to have occurred.
   
10. Allows a person participating in a pretrial diversion program to use medications to treat substance use disorders under the direction of a licensed health care practitioner if the participant allows release of his or her medical records to the court for the limited purpose of determining whether he or she is using the medications under the direction of a licensed health care practitioner and is complying with the rules of the pretrial diversion program.
11. Makes other technical and conforming changes.

Background

DEJ and Pretrial Diversion

Under existing law, a defendant charged with violations of certain specified drug offenses may be eligible to participate in a DEJ program if he or she meets specified criteria. (Pen. Code, §§ 1000 et seq.) With DEJ, a defendant must enter a guilty plea, and entry of judgment on the defendant’s guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced. If the defendant successfully completes DEJ, the arrest is deemed to never have occurred and 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 pretrial diversion for the offense.

Pretrial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. Pretrial diversion also requires the defendant to successfully complete a program and other conditions imposed by the court. Unlike DEJ, however, if a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense.

Prior to 1997, the program pursuant to (Penal Code § 1000 et seq.) was a pretrial diversion program. SB 1369 (Kopp, Chapter 1132, Statutes of 1996) changed the diversion program to a DEJ program.

Implications for Immigration Law

Diversion of an offense is preferable to DEJ in order to avoid adverse immigration consequences because the defendant is not required to plead guilty in order to participate in the program. Having a conviction for possession of a controlled substance, even if it has been dismissed, could initiate deportation proceedings or prevent a person from becoming a U.S. citizen. (Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994) 36 F3d. 801.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

Potential, unknown increase in state trial court costs (General Fund*) to the extent additional and/or more lengthy trials result than otherwise would have occurred under the existing DEJ program. The removal of the requirement to plead guilty in order to qualify for a treatment program potentially could result in additional defendants who enter a not guilty plea but are unsuccessful in a diversion program and who subsequently require a more lengthy process to adjudicate the charge than otherwise would have been required under the DEJ process after a guilty plea was entered. By further limiting which defendants are eligible for participation in the program (i.e., to those individuals who do not have a felony conviction within the preceding five years), the amendments could reduce the number of individuals who would be unsuccessful in a diversion program that would lead to additional or more lengthy hearings and trials for the court to adjudicate the charges.

*Trial Court Trust Fund

SUPPORT: (Verified 9/1/17)

American Civil Liberties Union of California (co-source)

California Immigrant Policy Center (co-source)

Coalition for Humane Immigrant Rights (co-source)

Drug Policy Alliance (co-source)

Immigrant Legal Resource Center (co-source)

Mexican American Legal Defense and Education Fund (co-source)

Alameda County Public Defender

Asian Americans Advancing Justice – California

California Access Coalition

California Attorneys for Criminal Justice

California Council of Community Behavioral Health Agencies

California Public Defenders Association

California Society of Addiction Medicine

California Youth Empowerment Network

Californians for Safety and Justice

County Behavioral Health Directors Association of California

Courage Campaign

Ella Baker Center for Human Rights

Human Impact Partners

Legal Services for Prisoners with Children

Mental Health America of California 

National Association of Social Workers, California Chapter

Southern California Coalition

Students for Sensible Drug Policy

United Food and Commercial Workers, Western States Council

OPPOSITION: (Verified 9/1/17)

Board of Registered Nursing

California District Attorneys Association

California State Board of Pharmacy

Respiratory Care Board of California

San Diego County District Attorney

ASSEMBLY FLOOR: 46-27, 6/1/17

AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Chau, Chávez, Chiu, Chu, Dababneh, Daly, Eggman, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Ridley-Thomas, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Cervantes, Chen, Cunningham, Dahle, Flora, Fong, Gallagher, Gray, Harper, Kiley, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Calderon, Choi, Cooley, Cooper, Frazier, Muratsuchi, Rodriguez

Prepared by: Stephanie Jordan / PUB. S. /

9/3/17 18:06:38

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 208 (Eggman) - Deferred entry of judgment: pretrial diversion

Bill Summary:

AB 208 would convert an existing deferred entry of judgment (DEJ) program related to personal use or possession of controlled substance offenses into a pretrial drug diversion program.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on September 1, 2017

Fiscal Impact:

Potential, unknown increase in state trial court costs (General Fund*) to the extent additional and/or more lengthy trials result than otherwise would have occurred under the existing DEJ program. The removal of the requirement to plead guilty in order to qualify for a treatment program potentially could result in additional defendants who enter a not guilty plea but are unsuccessful in a diversion program and who subsequently require a more lengthy process to adjudicate the charge than otherwise would have been required under the DEJ process after a guilty plea was entered. By further limiting which defendants are eligible for participation in the program (i.e., to those individuals who do not have a felony conviction within the preceding five years), the amendments could reduce the number of individuals who would be unsuccessful in a diversion program that would lead to additional or more lengthy hearings and trials for the court to adjudicate the charges.

*Trial Court Trust Fund

Author Amendments:

Limit eligibility into the program to those defendants who do not have any felony convictions within the five preceding years, extend the treatment program timeline from six months to one year to twelve months to eighteen months, and require the defendant to waive his or her jury trial rights for participation in the program.

-- END --

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 208 (Eggman) - Deferred entry of judgment: pretrial diversion

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 208 would convert an existing deferred entry of judgment (DEJ) program related to personal use or possession of controlled substance offense into a pretrial drug diversion program.

Fiscal Impact:

Potential, unknown increase in state trial court costs (General Fund*) to the extent additional and/or more lengthy trials result than otherwise would have occurred under the existing DEJ program. The removal of the requirement to plead guilty in order to qualify for a treatment program potentially could result in additional defendants who enter a not guilty plea but are unsuccessful in a diversion program and who subsequently require a more lengthy process to adjudicate the charge than otherwise would have been required under the DEJ process after a guilty plea was entered.

*Trial Court Trust Fund

Background:

Under existing law, a defendant charged with specified controlled substance offenses may be eligible to participate in a DEJ program if the defendant meets specified criteria, including but not limited to that he or she has no prior convictions for any offense involving a controlled substance and no prior felony convictions within five years of the currently charged offense. To participate, a defendant must enter a guilty plea, and entry of judgment on the defendant’s plea is deferred pending successful completion of the program. If the program is completed successfully, the arrest is deemed to never have occurred and the charge is dropped. Existing law states that 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.

Under existing law, a superior court is authorized but not required to administer a pre-plea drug diversion program if the court, the county district attorney, and the public defender agree. In contrast to DEJ, pretrial diversion suspends the criminal proceedings without the requirement for a defendant to enter a guilty plea. If a defendant is unsuccessful in a pretrial diversion program, criminal proceedings resume but the defendant may still proceed to trial or enter or change a plea. If diversion is completed successfully, akin to DEJ, the criminal charges are dismissed and the charge is deemed to never have occurred.

For a defendant who is not a U.S. citizen, diversion of a case would be preferable to DEJ to avoid adverse immigration consequences. A conviction for possession of controlled substances, even if dismissed, has the potential to prompt deportation proceedings or prevent an individual from becoming a U.S. citizen.

Proposed Law:

This bill would convert an existing DEJ program for qualified controlled substance possession or personal use offenses to a pretrial diversion program. Specifically, it would:

• Provide that a defendant qualifies for the pretrial diversion program if he or she has no prior conviction within five years of the charged offense, the charged offense did not involve violence, there is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation that qualifies for the program, and the defendant has no prior conviction for a serious or violent felony within five years before the alleged offense.
• Specify that under the pretrial diversion program created by this bill, a qualifying defendant would enter a not guilty plea, and proceedings would be suspended in order for the defendant to enter a drug treatment program for six months to one year, or longer if requested by the defendant with good cause.
• Require the court, if the defendant does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and reinstate the criminal proceedings.
• Require the criminal charges to be dismissed if the defendant completes the program.

Prior Legislation:

AB 1351 (Eggman, 2015) was substantially similar to this bill. AB 1351 was vetoed by the governor. In his veto message, the governor stated that he is “concerned that the bill eliminates the most powerful incentive to stay in treatment - the knowledge that judgment will be entered for failure to do so. The bill goes too far.”

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 208 Hearing Date: July 11, 2017

Subject: Deferred Entry of Judgment: Pretrial Diversion

HISTORY

Source: American Civil Liberties Union of California

California Immigrant Policy Center

Coalition for Humane Immigrant Rights

Drug Policy Alliance

Immigrant Legal Resource Center

Mexican American Legal Defense and Education Fund

Prior Legislation: AB 1351 (Eggman) Vetoed 2015

AB 994 (Lowenthal) Vetoed 2013

SB 513 (Hancock) Ch. 798, Stats. of 2013

SB 599 (Perata) Ch. 792, Stats. of 2003

SB 1369 (Kopp) Ch. 1132, Stats. of 1996

Support: Alameda County Public Defender; Asian Americans Advancing Justice – California; California Access Coalition; California Attorneys for Criminal Justice; California Council of Community Behavioral Health Agencies; California Public Defenders Association; Californians for Safety and Justice; County Behavioral Health Directors Association of California; Courage Campaign; Ella Baker Center for Human Rights; Human Impact Partners; National Association of Social Workers, California Chapter; Southern California Coalition; Students for Sensible Drug Policy; United Food and Commercial Workers, Western States Council

Opposition: Board of Registered Nursing; California District Attorneys Association; California State Board of Pharmacy (unless amended); Respiratory Care Board of California; San Diego County District Attorney

Assembly Floor Vote: 46 - 27

PURPOSE

The purpose of this bill is to convert the existing deferred entry of judgment (DEJ) program for specified drug offenses into a pretrial drug diversion program.

Existing law provides that a defendant may qualify for DEJ for specified non-violent drug offenses if the following apply to the defendant:

1. The defendant has no prior conviction for any offense involving controlled substances;
   
2. The offense charged did not involve a crime of violence or threatened violence;
   
3. There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the specified deferrable drug offenses;
   
4. The defendant’s record does not indicate that probation or parole has ever been revoked without thereafter being completed;
   
5. 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;
   
6. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (Pen. Code, § 1000, subd. (a).)
   

Existing law specifies the offenses that are eligible for DEJ, which include possession for personal use of specified controlled substances, possession of certain drug paraphernalia, being under the influence of a controlled substance, cultivation of marijuana for personal use, and being present in a place where controlled substances are being used. (Pen. Code, 1000, subd. (a).)

Existing law requires a prosecutor to review files to decide whether the defendant is eligible for DEJ. If the defendant is found eligible, the prosecuting attorney is required to file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and is required to 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).)

Existing law 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. (Pen. Code, § 1000, subd. (c).)

Existing law 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 deem the defendant a person who would be benefited by DEJ, or if the defendant does not consent to participate, the proceedings shall continue as in any other case. The period during which DEJ is granted shall be for no less than 18 months nor longer than three years. The probation department is required to file progress reports with the court as directed by the court. (Pen. Code, § 1000.2.)

Existing law 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, the prosecuting attorney, the court, or the probation department may make a motion for entry of judgment. After notice to the defendant, the court is required to hold a hearing to determine whether judgment should be entered. (Pen. Code, § 1000.3.)

Existing law provides that if the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or the court finds that the defendant has been convicted of a misdemeanor that reflects the defendant’s propensity for violence or has been convicted of a felony, or that the defendant has engaged in criminal conduct rendering him or her unsuitable for DEJ, 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 the Penal Code. (Pen. Code, § 1000.3.)

Existing law provides 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. (Pen. Code, § 1000.4, subd. (a).)

Existing law 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 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. (Pen. Code, § 1000.5.)

This bill changes the existing deferred entry of judgment (DEJ) program for specified drug offenses into a pretrial drug diversion program.

This bill establishes the following eligibility requirements for the pretrial drug diversion program:

1. The defendant must not have a prior conviction for a drug offense within five years other than those offense which may be diverted;
   
2. The charged offense did not involve violence or a threat of violence;
   
3. There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than those offenses which may be diverted; and,
   
4. The defendant must not have a prior conviction for a serious or violent felony, as specified, within the past five years.
   

This bill retains provisions in current DEJ law that are consistent with pretrial diversion.

This bill requires eligible defendants to be advised of the procedures for pretrial diversion, including that the defendant will be waiving the right to a speedy preliminary hearing and speedy trial; that if the defendant does not perform satisfactorily in the program, the prosecuting attorney, probation department, or court may make a motion to terminate pretrial diversion and schedule the matter for further proceedings; and an explanation of criminal record retention and disposition resulting from participation in the pretrial diversion program and the defendant’s rights relative to answering questions about his or her arrest and pretrial diversion following successful completion of the program.

This bill provides that a defendant’s participation in pretrial diversion does not constitute a conviction or an admission of guilt for any purpose.

This bill sets the length of the pretrial diversion program from six months to one year, but allows the court to extend that time for good cause.

This bill provides that the prosecutor, the court, or the probation department may move to terminate diversion if the defendant is performing unsatisfactorily, or he or she has been convicted of a felony or an offense reflecting propensity for violence.

This bill provides that if pretrial diversion is terminated, either due to unsatisfactory performance or because of specified convictions, then the court shall schedule the matter for further proceedings.

This bill provides for dismissal of charges if the defendant completes pretrial diversion, and deems arrest for the charges never to have occurred.

This bill allows a person participating in a pretrial diversion program to use medications to treat substance use disorders under the direction of a licensed health care practitioner if the participant allows release of his or her medical records to the court for the limited purpose of determining whether he or she is using the medications under the direction of a licensed health care practitioner and is complying with the rules of the pretrial diversion program.

COMMENTS

1. Need for This Bill

According to the author:

California law provides for deferred entry of judgment (DEJ) for minor nonviolent drug offenses, most involving possession or use of drugs. A defendant is required to plead guilty, waive his or her right to a speedy trial, and complete a drug treatment program. If the program is completed, the criminal case is dismissed and the state no longer recognizes or acknowledges the conviction. Defendants are often led to believe that once the case is dismissed they will not be denied any benefit and the arrest will be deemed never to have occurred. Unfortunately, noncitizen defendants charged with minor drug offenses, including misdemeanors, are often incorrectly advised or believe that pleading guilty with a deferred entry of judgment will not count as a conviction for any purpose. However, under federal immigration laws, post-plea deferred entry

of judgment programs, as provided currently under (California Penal Code 1000 et. Seq), are still considered a conviction for immigration purposes, even if the defendant successfully completed the program, the case dismissed, and the conviction no longer exists under state law.

This dismissal does not protect defendants from federal consequences. Indeed, consequences for immigrants are harsh, including denial of U.S. citizenship for those who are legal permanent residents to deportation and separation from family for undocumented immigrants. According to the Transactional Records Access Clearinghouse at Syracuse University, since 2008, over 250,000 people have been deported from the U.S. for nonviolent drug offenses. In fact, a nonviolent drug offense was the cause of deportation for more than one in every ten people deported in 2013 for any reason.

Even for U.S. citizens that complete the terms of court-ordered diversion, convictions can carry long-term negative consequences, including loss of federal housing and educational benefits.

2. DEJ and Pretrial Diversion

Under existing law, a defendant charged with violations of certain specified drug offenses may be eligible to participate in a DEJ program if he or she meets specified criteria. (Pen. Code, §§ 1000 et seq.) With DEJ, a defendant must enter a guilty plea, and entry of judgment on the defendant’s guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced. If the defendant successfully completes DEJ, the arrest is deemed to never have occurred and 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 pretrial diversion for the offense.

Pretrial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. Pretrial diversion also requires the defendant to successfully complete a program and other conditions imposed by the court. Unlike DEJ, however, if a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense.

Prior to 1997, the program pursuant to (Penal Code § 1000 et seq.) was a pretrial diversion program. SB 1369 (Kopp), Chapter 1132, Statutes of 1996, changed the diversion program to a DEJ program.

3. Implications for Immigration Law

Diversion of an offense is preferable to DEJ in order to avoid adverse immigration consequences because the defendant is not required to plead guilty in order to participate in the program. Having a conviction for possession of a controlled substance, even if it has been dismissed, could initiate deportation proceedings or prevent a person from becoming a U.S. citizen. (Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994) 36 F3d. 801.)

This bill seeks to minimize the potential exposure to adverse immigration consequences for persons who commit minor drug offenses by re-establishing a pretrial diversion program.

4. Governor’s Veto Message

AB 1351 (Eggman) was nearly identical to this bill, and was vetoed by Governor Brown in 2015. In his veto message, the Governor wrote:

AB 1351 would transform the existing deferred entry of judgment program available to low level drug offenders to one that does not require a guilty plea. Instead, the offender would plead not guilty and when the program is completed, the charges would be dropped. If the offender fails to complete the program, the prosecutor would proceed with the charges at that time.

While I support the goal of giving low-level offenders a second chance, I am concerned that the bill eliminates the most powerful incentive to stay in treatment – the knowledge that judgment will be entered for failure to do so. The bill goes too far.

5. Arguments in Support

California Attorneys for Criminal Justice supports this bill, stating:

This bill would change deferred entry of judgment (DEJ) back into a pretrial program if the person has no prior drug convictions or no previous serious or violent felonies within the 5 years prior to the alleged charged defense.

…AB 208 will amend Penal Code 1000 to allow courts to order pretrial treatment, rather than require a guilty plea, for minor drug offenses, for any person who fails to adhere to conditions of a pre-trial treatment program, the court could reinstate the charges and schedule proceedings pursuant to existing law. This bill would create greater flexibility and efficiency, allowing judges to order pretrial diversion when the court believes it is in the best interest of justice, and best matches local resources. This is a more effective approach to handling those who are accused of using drugs. Treatment as a response is paramount and has increasingly been the preferred method of response in California. Just recently California reaffirmed this approach by passing Proposition 47 and 64. AB 208 builds on this treatment approach.

AB 208 is also an effective response to how immigration courts view California’s drug laws. Currently, “drug diversion” can be treated as a serious crime with adverse effects. This measure rightfully recalibrates this law.

The Mexican American Legal Defense Fund, a co-sponsor of the bill, writes:

This bill will eliminate unintended federal consequences that flow from minor drug convictions including deportation or denial of reentry, and provide greater flexibility for courts.

… Convictions for minor drug offenses result in much harsher consequences for noncitizens, since these offenses automatically trigger deportation proceedings when a guilty plea is involved. Once in deportation proceedings, people are often imprisoned in private, for-profit prisons far from their families, without legal representation—all for an offense that the state of California no longer deems to exist.

AB 208 will amend Penal Code 1000 et seq. to allow courts to order pretrial diversion, rather than require a guilty plea to enter drug treatment. This was the way that PC 1000 worked until 1997. Because there will be no guilty plea, there will be no “conviction” for federal immigration purposes. For any person who fails to adhere to conditions of a pre-trial diversion program, the court could reinstate the charges and schedule proceedings pursuant to existing law. Diversion will not be allowed for any person charged with drug sale, or possession for sale, nor will be allowed for persons who involve minors in drug sales or provide drugs to minors.

6. Argument in Opposition

The California District Attorneys Association writes:

This bill would make many changes to existing drug diversion programs, with the intent of relieving drug offenders from adverse immigration consequences. While we appreciate the intent of the bill, we do not support upending current law, which already provides counties with great discretion in the creation and structure of drug diversion programs, simply to help a small segment of offenders avoid collateral consequence.

The existing drug diversion process is both efficient and effective….

AB 208 would turn that process on its head, allowing the defendant to enter a treatment program after entering a plea of not guilty…. From a practical standpoint, this gives drug offenders two bites at the same apple – they can enter drug diversion and then, if they are unsuccessful, can go to trial with the not guilty plea they have already entered.

Additionally, AB 208 would reduce the length of drug treatment programs down to one-third of what they currently are, as it allows for only 6 to 12 months of treatment and supervision…. Reducing the length of the program might make it easier for people to complete the program, but it also reduces the likelihood of a truly positive outcome.

It is unclear how reducing the amount of drug treatment and supervision that someone receives would have any positive impact on their immigration consequences.

… Currently, a defendant must not have any prior drug convictions to qualify for drug diversion. Under AB 208, if the prior offenses were all diversion-eligible drug offenses (or more significant drug offenses that had occurred more than five years prior), there is no limit to the number of drug offenses someone could accumulate while maintaining diversion eligibility. These requirements exist to ensure that individuals who are eligible for drug diversion are those who are likely to be successful in those programs….

Further, AB 208 changes the requirement that a defendant have no felony convictions in the previous five years, instead requiring only that the defendant not have any prior serious or violent felonies within the previous five years. If AB 208 is meant to address the negative immigration consequences of deferred entry of judgment programs, we fail to see why it is also necessary to expand eligibility to habitual drug offenders and other felons.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 208

Author:(Eggman)

As Amended Ver:March 8, 2017

Majority vote

SUMMARY: Converts the existing deferred entry of judgment (DEJ) program for specified drug-possession offenses into a pretrial drug diversion program. Specifically, this bill:

1. Changes the existing deferred entry of judgment (DEJ) program for specified drug-possession offenses into a pretrial drug diversion program.
2. Establishes the following eligibility requirements for the pretrial drug diversion program:
   1. The defendant must not have a prior conviction for a drug offense within five years other than those offense which may be diverted;
   2. The charged offense did not involve violence or a threat of violence;
   3. There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than those offenses which may be diverted; and,
   4. The defendant must not have a prior serious or violent felony, as specified, within the past five years.
3. Retains provisions in current DEJ law that are consistent with pretrial diversion.
4. Requires eligible defendants to be advised of the procedures for pretrial diversion, including that the defendant will be waiving the right to a speedy preliminary hearing and speedy trial; and that if the defendant does not perform satisfactorily in the program, the court shall reinstate the charges and schedule the matter for further proceedings.
5. Provides that a defendant's participation in pretrial diversion does not constitute a conviction or an admission of guilt for any purpose.
6. Sets the length of the diversion program from six months to one year, but allows the court to extend that time for good cause.
7. States that if the prosecutor, the court, or the probation department believes the defendant is performing unsatisfactorily, or that he or she has been convicted of a felony or an offense reflecting propensity for violence, then the prosecutor, the court, or the probation department may move to terminate diversion.
8. Provides that if diversion is terminated, either due to unsatisfactory performance or because of specified convictions, then the court shall schedule the matter for further proceedings.
9. Provides for dismissal of charges if the defendant completes pretrial diversion, and deems arrest for the charges never to have occurred.
10. Allows a person participating in a diversion program to use medications to treat substance-abuse disorders under the direction of a licensed health care practitioner if the participant allows release of his or her medical records to the court for the limited purpose of determining whether he or she is using the medications under the direction of a licensed professional and is complying with the rules of the diversion program.

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:
   1. The defendant has no prior conviction for any offense involving controlled substances;
   2. The offense charged did not involve a crime of violence or threatened violence;
   3. There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the specified deferrable drug offenses;
   4. The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed;
   5. 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;
   6. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.
2. Specifies the offenses that are eligible for DEJ, which include possession for personal use of specified controlled substances, possession of certain drug paraphernalia, being under the influence of a controlled substance, cultivation of marijuana for personal use, and being present in a place where controlled substances are being used.
3. Requires a prosecutor 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.
4. 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 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 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.
7. Authorizes counties to establish and conduct a pre-guilty 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 satisfactorily during the period of the preguilty plea program, at the end of that period, the criminal charge or charges shall be dismissed.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, significant costs, in the hundreds of thousands of dollars (General Fund), to the courts for additional court trials since more individuals will likely plead innocent to drug offenses, even after failing the diversion program. The incentive to plead guilty to qualify for the DEJ is removed by this bill.

COMMENTS: According to the author, "This bill seeks to limit harsh consequences to immigrants by changing the current process for nonviolent, misdemeanor drug offenses from deferred entry of judgment (DEJ) to pretrial diversion. While the current DEJ process eliminates a conviction if the defendant successfully completes DEJ, the defendant may still face federal consequences, including deportation if the defendant is undocumented, or the prohibition from becoming a U.S. citizen if the defendant is a legal permanent resident. This is a systemic injustice to immigrants to this country, but even U.S. citizens may face federal consequences, including loss of federal housing and educational benefits. This bill will keep families together, help people retain eligibility for U.S. citizenship, and also preserve access to other benefits for those who qualify."

Analysis Prepared by Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0000557

Date of Hearing: April 5, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 208

Author:(Eggman) – As Amended Ver:March 8, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill changes the existing deferred entry of judgment (DEJ) program, for specified offenses involving personal use or possession of controlled substances, into a pretrial drug diversion program. To be eligible for diversion: a) the defendant must not have a prior conviction for any offense involving a controlled substance other than the offenses that may be diverted as specified; b) the offense charged must not have involved a crime of violence or threatened violence; c) there must be no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of an offense that may be diverted; and d) the defendant must not have any prior convictions for a serious or violent felony, as defined, within five years prior to the alleged commission of the charged offense.

FISCAL EFFECT:

Significant costs, in the hundreds of thousands of dollars (GF), to the courts for additional court trials since more individuals will likely plead innocent to drug offenses, even after failing the diversion program. The incentive to plead guilty to qualify for the DEJ is removed by this bill.

COMMENTS:

1. Purpose. According to the author, “This bill seeks to limit harsh consequences to immigrants by changing the current process for nonviolent, misdemeanor drug offenses from deferred entry of judgment (DEJ) to pretrial diversion. While the current DEJ process eliminates a conviction if the defendant successfully completes DEJ, the defendant may still face federal consequences, including deportation if the defendant is undocumented, or the prohibition from becoming a U.S. citizen if the defendant is a legal permanent resident. This is a systemic injustice to immigrants to this country, but even U.S. citizens may face federal consequences, including loss of federal housing and educational benefits. This bill will keep families together, help people retain eligibility for U.S. citizenship, and also preserve access to other benefits for those who qualify.”
2. Background. Under existing law, a defendant charged with violations of certain specified drug offenses may be eligible to participate in a DEJ program if he or she meets specified criteria. With DEJ, a defendant must enter a guilty plea and entry of judgment on the defendant's guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced. If the defendant successfully completes DEJ, the arrest shall be deemed to never have occurred and 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 pretrial diversion for the offense.

Diversion, on the other hand, suspends the criminal proceedings without requiring the defendant to enter a plea. Diversion also requires the defendant to successfully complete a program and other conditions imposed by the court. Unlike DEJ however, if a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense.

In order to avoid adverse immigration consequences, diversion of an offense is preferable to DEJ because the defendant is not required to plea guilty in order to participate in the program. Having a conviction for possession of controlled substances, even if dismissed, could trigger deportation proceedings or prevent a person from becoming a U.S. citizen.

This bill seeks to minimize the potential exposure to adverse immigration consequences for persons who commit minor drug possession offenses by re-establishing a pretrial diversion program for minor drug possession. Prior to 1997, the program was a pretrial diversion program, but SB 1369 (Kopp), Chapter 1132, Statutes of 1996, changed the diversion program to a DEJ program.

Current law 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 satisfactorily during the period of the preguilty plea program, at the end of that period, the criminal charge or charges shall be dismissed.

1. Support: According to the Drug Policy Alliance, a co-sponsor of this bill, “Noncitizen defendants charged with minor drug offenses, including misdemeanors, are often incorrectly advised or believe that pleading guilty with a deferred entry of judgment will not count as a conviction for any purpose. However, under federal immigration laws, post-plea deferred entry of judgment programs, … are still considered a conviction for immigration purposes, even if the defendant successfully completed the program, or the case was dismissed, and the conviction no longer exists under state law. Deferred entry of judgments convictions are used against non-U.S. citizens to deport them, prevent them from gaining lawful status, and from being eligible for pardons against deportation. These unjust consequences are equally true for longtime lawful permanent residents and beneficiaries of the Deferred Action for Childhood Arrivals program, as for undocumented persons.”
2. Governor’s Veto Message: This bill is almost identical to AB 1351 (Eggman), of the 2015-2016 Legislative Session, which was vetoed by Governor Brown who said:

“AB 1351 would transform the existing deferred entry of judgment program available to low level drug offenders to one that does not require a guilty plea. Instead, the offender would plead not guilty and when the program is completed, the charges would be dropped. If the offender fails to complete the program, the prosecutor would proceed with the charges at that time.

While I support the goal of giving low-level offenders a second chance, I am concerned that the bill eliminates the most powerful incentive to stay in treatment - the knowledge that judgment will be entered for failure to do so. The bill goes too far.”

1. Related Legislation:
   

AB 596 (Choi) provides that drug diversion qualifies as a conviction for purposes of obtaining victim restitution. AB 596 is pending hearing in Assembly Public Safety Committee.

SB 8 (Beall) allows pretrial diversion if the court is satisfied the defendant suffers from a mental disorder, that the defendant’s mental disorder played a significant role in the commission of the crime, and that the defendant would benefit from mental health treatment. SB 8 is pending hearing in Senate Appropriations Committee

Analysis Prepared by: Pedro Reyes / APPR. / 916-319-2081

Date of Hearing:

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Amended Ver:

SUMMARY:

Converts the existing deferred entry of judgment (DEJ) program for specified drug-possession offenses into a pretrial drug diversion program. Specifically, this bill:

1. Changes the existing deferred entry of judgment (DEJ) program for specified drug-possession offenses into a pretrial drug diversion program.
   
2. Establishes the following eligibility requirements for the pretrial drug diversion program:
   
   1. The defendant must not have a prior conviction for a drug offense within five years other than those offense which may be diverted;
      
   2. The charged offense did not involve violence or a threat of violence;
      
   3. There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than those offenses which may be diverted; and,
      
   4. The defendant must not have a prior serious or violent felony, as specified, within the past five years.
      
3. Retains provisions in current DEJ law that are consistent with pretrial diversion.
   
4. Requires eligible defendants to be advised of the procedures for pretrial diversion, including that the defendant will be waiving the right to a speedy preliminary hearing and speedy trial; and that if the defendant does not perform satisfactorily in the program, the court shall reinstate the charges and schedule the matter for further proceedings.
   
5. Provides that a defendant’s participation in pretrial diversion does not constitute a conviction or an admission of guilt for any purpose.
   
6. Sets the length of the diversion program from six months to one year, but allows the court to extend that time for good cause.
   
7. States that if the prosecutor, the court, or the probation department believes the defendant is performing unsatisfactorily, or that he or she has been convicted of a felony or an offense reflecting propensity for violence, then the prosecutor, the court, or the probation department may move to terminate diversion.
   
8. Provides that if diversion is terminated, either due to unsatisfactory performance or because of specified convictions, then the court shall schedule the matter for further proceedings.
   
9. Provides for dismissal of charges if the defendant completes pretrial diversion, and deems arrest for the charges never to have occurred.
   
10. Allows a person participating in a diversion program to use medications to treat substance-abuse disorders under the direction of a licensed health care practitioner if the participant allows release of his or her medical records to the court for the limited purpose of determining whether he or she is using the medications under the direction of a licensed professional and is complying with the rules of the diversion program.

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:
   
   1. The defendant has no prior conviction for any offense involving controlled substances;
      
   2. The offense charged did not involve a crime of violence or threatened violence;
      
   3. There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the specified deferrable drug offenses;
      
   4. The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed;
      
   5. 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;
      
   6. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (Pen. Code, § 1000, subd. (a).)
      
2. Specifies the offenses that are eligible for DEJ, which include possession for personal use of specified controlled substances, possession of certain drug paraphernalia, being under the influence of a controlled substance, cultivation of marijuana for personal use, and being present in a place where controlled substances are being used. (Pen. Code, 1000, subd. (a).)
   
3. Requires a prosecutor 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. (Pen. Code, § 1000, subd. (b).)
   
4. 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. (Pen. Code, § 1000, subd. (c).)
   
5. 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 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. (Pen. Code, § 1000.2.)
   
6. 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. (Pen. Code, § 1000.3.)
   
7. 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 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. (Pen. Code, § 1000.4, subd. (a).)
   
8. Authorizes counties to establish and conduct a pre-guilty 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 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.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “This bill seeks to limit harsh consequences to immigrants by changing the current process for nonviolent, misdemeanor drug offenses from deferred entry of judgment (DEJ) to pretrial diversion. While the current DEJ process eliminates a conviction if the defendant successfully completes DEJ, the defendant may still face federal consequences, including deportation if the defendant is undocumented, or the prohibition from becoming a U.S. citizen if the defendant is a legal permanent resident. This is a systemic injustice to immigrants to this country, but even U.S. citizens may face federal consequences, including loss of federal housing and educational benefits. This bill will keep families together, help people retain eligibility for U.S. citizenship, and also preserve access to other benefits for those who qualify.”
   
2. DEJ as Compared to Diversion: Under existing law, a defendant charged with violations of certain specified drug may be eligible to participate in a DEJ program if he or she meets specified criteria. (Pen. Code, §§ 1000 et seq.) With DEJ, a defendant must enter a guilty plea and entry of judgment on the defendant's guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced. If the defendant successfully completes DEJ, the arrest shall be deemed to never have occurred and 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 pretrial diversion for the offense.

Diversion on the other hand suspends the criminal proceedings without requiring the defendant to enter a plea. Diversion also requires the defendant to successfully complete a program and other conditions imposed by the court. Unlike DEJ however, if a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense.

Prior to 1997, the program pursuant to Penal Code § 1000 et seq. was a pretrial diversion program. SB 1369 (Kopp), Chapter 1132, Statutes of 1996, changed the diversion program to a DEJ program.

1. Implications for Immigration Law: In order to avoid adverse immigration consequences, diversion of an offense is preferable to DEJ because the defendant is not required to plead guilty in order to participate in the program. Having a conviction for possession of controlled substances, even if dismissed, could trigger deportation proceedings or prevent a person from becoming a U.S. citizen. (Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994) 36 F3d. 801.)
   
   This bill seeks to minimize the potential exposure to adverse immigration consequences for persons who commit minor drug possession offenses by re-establishing a pretrial diversion program for minor drug possession.
   
2. Governor’s Veto Message: AB 1351 (Eggman) of the 2015-2016 legislative session was nearly identical to this bill, and was vetoed by Governor Brown. In his veto message, the Governor said:
   
   “AB 1351 would transform the existing deferred entry of judgment program available to low level drug offenders to one that does not require a guilty plea. Instead, the offender would plead not guilty and when the program is completed, the charges would be dropped. If the offender fails to complete the program, the prosecutor would proceed with the charges at that time.
   
   “While I support the goal of giving low-level offenders a second chance, I am concerned that the bill eliminates the most powerful incentive to stay in treatment - the knowledge that judgment will be entered for failure to do so. The bill goes too far.”
   
3. Argument in Support: According to the Drug Policy Alliance, a co-sponsor of this bill, “California law provides for deferred entry of judgment for minor nonviolent drug offenses, most involving possession or use of drugs. A defendant is required to plead guilty, waive his or her right to a speedy trial, and complete a drug treatment program. If the program is completed, the criminal case is dismissed. Defendants are often led to believe that once the case is dismissed they will not be denied any benefit and the arrest will be deemed never to have occurred.
   
   “However, this dismissal does not protect a defendant from federal consequences, including deportation for non-citizen residents, including permanent green card holders. Even for US citizens that complete the terms of court-ordered diversion, convictions can carry long-term negative consequences, including loss of federal housing and educational benefits.
   
   “Convictions for misdemeanor drug offenses result in much harsher consequences for non-U.S. citizens, including deportation and separation from family, loved ones and employment. According to the Transactional Records Access Clearinghouse at Syracuse University, since 2008, over 250,000 people have been deported from the U.S. for nonviolent drug offenses. A nonviolent drug offense was the cause of deportation for more than one in every ten people deported in 2013 for any reason.
   
   “Noncitizen defendants charged with minor drug offenses, including misdemeanors, are often incorrectly advised or believe that pleading guilty with a deferred entry of judgment will not count as a conviction for any purpose. However, under federal immigration laws, post-plea deferred entry of judgment programs, as provided currently under PC 1000 et. seq, are still considered a conviction for immigration purposes, even if the defendant successfully completed the program, or the case was dismissed, and the conviction no longer exists under state law. Deferred entry of judgments convictions are used against non-U.S. citizens to deport them, prevent them from gaining lawful status, and from being eligible for pardons against deportation. These unjust consequences are equally true for longtime lawful permanent residents and beneficiaries of the Deferred Action for Childhood Arrivals program, as for undocumented persons.
   
   “This bill will amend Penal Code 1000 et seq. to allow for pre-trial diversion, instead of requiring the defendant to plead guilty first and then seek deferred entry of judgment for nonviolent misdemeanor drug offenses. For any person who fails to adhere to conditions of a pre-trial diversion program, the court could reinstate the charges and schedule proceedings pursuant to existing law.”
   
4. Related Legislation:
   
   1. AB 596 (Choi) provides that drug diversion qualifies as a conviction for purposes of obtaining victim restitution. AB 596 is pending hearing in this Committee.
      
   2. SB 8 (Beall) allows pretrial diversion if the court is satisfied the defendant suffers from a mental disorder, that the defendant’s mental disorder played a significant role in the commission of the crime, and that the defendant would benefit from mental health treatment. SB 8 is pending hearing in the Senate Public Safety Committee.
      
5. Prior Legislation:
   
   1. AB 1351 (Eggman) of the 2015-2016 Legislative Session would have made the existing deferred entry of judgment (DEJ) program for specified offenses involving personal use or possession of controlled substances a pretrial drug diversion program. AB 1351 was vetoed.
      
   2. SB 1369 (Kopp), Chapter 1132, Statutes of 1996, changed the diversion program for drug offenders to a DEJ program. Increased the time allowed before a case can be dismissed from a period of no less than six months to two years, to a period of no less than 18 months to three years.

REGISTERED SUPPORT / OPPOSITION:

Support

America Civil Liberties Union (Co-Sponsor)
Coalition for Humane Immigrant Rights (Co-Sponsor)
Drug Policy Alliance (Co-Sponsor)
Immigrant Legal Resource Center (Co-Sponsor)
Mexican American Legal Defense and Education Fund (Co-Sponsor)
California Attorneys for Criminal Justice
California Public Defenders Association

Ella Baker Center for Human Rights
Human Impact Partners
National Association of Social Workers, California Chapter

Opposition

None

Analysis Prepared by:

Sandy Uribe / PUB. S. /