Bill Text: CA AB1351 | 2015-2016 | Regular Session | Enrolled


Bill Title: Deferred entry of judgment: pretrial diversion.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Vetoed) 2016-01-15 - Consideration of Governor's veto stricken from file. [AB1351 Detail]

Download: California-2015-AB1351-Enrolled.html
BILL NUMBER: AB 1351	ENROLLED
	BILL TEXT

	PASSED THE SENATE  SEPTEMBER 9, 2015
	PASSED THE ASSEMBLY  SEPTEMBER 10, 2015
	AMENDED IN SENATE  SEPTEMBER 3, 2015
	AMENDED IN ASSEMBLY  JUNE 1, 2015
	AMENDED IN ASSEMBLY  APRIL 16, 2015

INTRODUCED BY   Assembly Member Eggman
   (Coauthor: Senator Hall)

                        FEBRUARY 27, 2015

   An act to amend Sections 1000, 1000.1, 1000.2, 1000.3, 1000.4,
1000.5, and 1000.6 of, and to add Section 1000.7 to, the Penal Code,
relating to deferred entry of judgment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1351, Eggman. Deferred entry of judgment: pretrial diversion.
   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 defendant's record does not indicate that probation or
parole has ever been revoked without being completed, and the
defendant's 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 defendant's 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 provide that a defendant
qualifies 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 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 not guilty plea, 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.


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

  SECTION 1.  Section 1000 of the Penal Code is amended to read:
   1000.  (a) This chapter shall apply whenever a case is before any
court upon an accusatory pleading for a violation of Section 11350,
11357, 11364, or 11365, paragraph (2) of subdivision (b) of Section
11375, Section 11377, or Section 11550 of the Health and Safety Code,
or subdivision (b) of Section 23222 of the Vehicle Code, or Section
11358 of the Health and Safety Code if the marijuana planted,
cultivated, harvested, dried, or processed is for personal use, or
Section 11368 of the Health and Safety Code if the narcotic drug was
secured by a fictitious prescription and is for the personal use of
the defendant and was not sold or furnished to another, or
subdivision (d) of Section 653f if the solicitation was for acts
directed to personal use only, or Section 381 or subdivision (f) of
Section 647 of the Penal Code, if for being under the influence of a
controlled substance, or Section 4060 of the Business and Professions
Code, and it appears to the prosecuting attorney that, except as
provided in subdivision (b) of Section 11357 of the Health and Safety
Code, all of the following apply to the defendant:
   (1) The defendant has no prior conviction within five years prior
to the alleged commission of the charged offense for any offense
involving controlled substances other than the offenses listed in
this subdivision.
   (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 sections
listed in this subdivision.
   (4) The defendant has no prior conviction within five years prior
to the alleged commission of the charged offense for a serious
felony, as defined in subdivision (c) of Section 1192.7, or a violent
felony, as defined in subdivision (c) of Section 667.5.
   (b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to (4), inclusive, of
subdivision (a) apply to the defendant. If the defendant is found
eligible, the prosecuting attorney shall file with the court a
declaration in writing or state for the record the grounds upon which
the determination is based, and shall make this information
available to the defendant and his or her attorney. This procedure is
intended to allow the court to set the hearing for pretrial
diversion at the arraignment. If the defendant is found ineligible
for pretrial diversion, the prosecuting attorney shall file with the
court a declaration in writing or state for the record the grounds
upon which the determination is based, and shall make this
information available to the defendant and his or her attorney. The
sole remedy of a defendant who is found ineligible for pretrial
diversion is a postconviction appeal.
   (c) All referrals for pretrial diversion granted by the court
pursuant to this chapter shall be made only to programs that have
been certified by the county drug program administrator pursuant to
Chapter 1.5 (commencing with Section 1211) of Title 8, 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
set forth in this subdivision.
   (d) Pretrial diversion for an alleged violation of Section 11368
of the Health and Safety Code shall not prohibit any administrative
agency from taking disciplinary action against a licensee or from
denying a license. Nothing in this subdivision shall be construed to
expand or restrict the provisions of Section 1000.4.
   (e) Any defendant who is participating in a program referred to in
this section may be required to undergo analysis of his or her urine
for the purpose of testing for the presence of any drug as part of
the program. However, urinalysis results shall not be admissible as a
basis for any new criminal prosecution or proceeding.
  SEC. 2.  Section 1000.1 of the Penal Code is amended to read:
   1000.1.  (a) If the prosecuting attorney determines that this
chapter may be applicable to the defendant, he or she shall advise
the defendant and his or her attorney in writing of that
determination. This notification shall include all of the following:
   (1) A full description of the procedures for pretrial diversion.
   (2) A general explanation of the roles and authorities of the
probation department, the prosecuting attorney, the program, and the
court in the process.
   (3) A clear statement that the court may grant pretrial diversion
with respect to any crime specified in subdivision (a) of Section
1000 that is charged, provided that the defendant pleads not guilty
to the charge or charges, waives the right to a speedy trial and to a
speedy preliminary hearing, if applicable, and that upon the
defendant's successful completion of a program, as specified in
subdivision (c) of Section 1000, the positive recommendation of the
program authority and the motion of the defendant, prosecuting
attorney, the court, or the probation department, but no sooner than
six months and no later than one year from the date of the defendant'
s referral to the program, the court shall dismiss the charge or
charges against the defendant.
   (4) A clear statement that upon any failure of treatment or
condition under the program, or any circumstance specified in Section
1000.3, the prosecuting attorney or the probation department or the
court on its own may make a motion to the court to terminate pretrial
diversion and schedule further proceedings as otherwise provided in
this code.
   (5) 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.
   (b) If the defendant consents and waives his or her right to a
speedy trial and a speedy preliminary hearing, if applicable, the
court may refer the case to the probation department or the court may
summarily grant pretrial diversion. When directed by the court, the
probation department shall make an investigation and take into
consideration the defendant's age, employment and service records,
educational background, community and family ties, prior controlled
substance use, treatment history, if any, demonstrable motivation,
and other mitigating factors in determining whether the defendant is
a person who would be benefited by education, treatment, or
rehabilitation. The probation department shall also determine which
programs the defendant would benefit from and which programs would
accept the defendant. The probation department shall report its
findings and recommendations to the court. The court shall make the
final determination regarding education, treatment, or rehabilitation
for the defendant. If the court determines that it is appropriate,
the court shall grant pretrial diversion if the defendant pleads not
guilty to the charge or charges and waives the right to a speedy
trial and to a speedy preliminary hearing, if applicable.
   (c) (1) No statement, or any information procured therefrom, made
by the defendant to any probation officer or drug treatment worker,
that is made during the course of any investigation conducted by the
probation department or treatment program pursuant to subdivision
(b), and prior to the reporting of the probation department's
findings and recommendations to the court, shall be admissible in any
action or proceeding brought subsequent to the investigation.
   (2) No statement, or any information procured therefrom, with
respect to the specific offense with which the defendant is charged,
that is made to any probation officer or drug program worker
subsequent to the granting of pretrial diversion shall be admissible
in any action or proceeding.
   (d) A defendant's participation in pretrial diversion pursuant to
this chapter shall not constitute a conviction or an admission of
guilt for any purpose.
  SEC. 3.  Section 1000.2 of the Penal Code is amended to read:
   1000.2.  (a) The court shall hold a hearing and, after
consideration of any information relevant to its decision, shall
determine if the defendant consents to further proceedings under this
chapter and if the defendant should be granted pretrial diversion.
If the defendant does not consent to participate in pretrial
diversion the proceedings shall continue as in any other case.
   (b) At the time that pretrial diversion is granted, any bail bond
or undertaking, or deposit in lieu thereof, on file by or on behalf
of the defendant shall be exonerated, and the court shall enter an
order so directing.
   (c) The period during which pretrial diversion is granted shall be
for no less than six months nor longer than one year. However, the
defendant may request, and the court shall grant, for good cause
shown, an extension of time to complete a program specified in
subdivision (c) of Section 1000. Progress reports shall be filed by
the probation department with the court as directed by the court.
  SEC. 4.  Section 1000.3 of the Penal Code is amended to read:
   1000.3.  (a) If it appears to the prosecuting attorney, the court,
or the probation department that the defendant is performing
unsatisfactorily in the assigned program, or that the defendant is
convicted of an offense that reflects the defendant's propensity for
violence, or the defendant is convicted of a felony, the prosecuting
attorney, the court on its own, or the probation department may make
a motion for termination from pretrial diversion.
   (b) After notice to the defendant, the court shall hold a hearing
to determine whether pretrial diversion shall be terminated.
   (c) If the court finds that the defendant is not performing
satisfactorily in the assigned program, or the court finds that the
defendant has been convicted of a crime as indicated in subdivision
(a) the court shall schedule the matter for further proceedings as
otherwise provided in this code.
   (d) If the defendant has completed pretrial diversion, at the end
of that period, the criminal charge or charges shall be dismissed.
   (e) Prior to dismissing the charge or charges or terminating
pretrial diversion, the court shall consider the defendant's ability
to pay and whether the defendant has paid a diversion restitution fee
pursuant to Section 1001.90, if ordered, and has met his or her
financial obligation to the program, if any. As provided in Section
1203.1b, the defendant shall reimburse the probation department for
the reasonable cost of any program investigation or progress report
filed with the court as directed pursuant to Sections 1000.1 and
1000.2.
  SEC. 5.  Section 1000.4 of the Penal Code is amended to read:
   1000.4.  (a) Any record filed with the Department of Justice shall
indicate the disposition in those cases referred to pretrial
diversion pursuant to this chapter. Upon successful completion of a
pretrial diversion program, the arrest upon which the defendant was
diverted 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 pretrial
diversion for the offense, except as specified in subdivision (b). A
record pertaining to an arrest resulting in successful completion of
a pretrial diversion program shall not, without the defendant's
consent, be used in any way that could result in the denial of any
employment, benefit, license, or certificate.
   (b) The defendant shall be advised that, regardless of his or her
successful completion of the pretrial diversion program, the arrest
upon which pretrial diversion was based may be disclosed by the
Department of Justice in response to any peace officer application
request and that, notwithstanding subdivision (a), this section does
not relieve him or her of the obligation to disclose the arrest in
response to any direct question contained in any questionnaire or
application for a position as a peace officer, as defined in Section
830.
  SEC. 6.  Section 1000.5 of the Penal Code is amended to read:
   1000.5.  (a) The presiding judge of the superior court, or a judge
designated by the presiding judge, together with the district
attorney and the public defender, may agree in writing to establish
and conduct a preguilty plea drug court program pursuant to the
provisions of this chapter, wherein criminal proceedings are
suspended without a plea of guilty for designated defendants. The
drug court program shall include a regimen of graduated sanctions and
rewards, individual and group therapy, urinalysis testing
commensurate with treatment needs, close court monitoring and
supervision of progress, educational or vocational counseling as
appropriate, and other requirements as agreed to by the presiding
judge or his or her designee, the district attorney, and the public
defender. If there is no agreement in writing for a preguilty plea
program by the presiding judge or his or her designee, the district
attorney, and the public defender, the program shall be operated as a
pretrial diversion program as provided in this chapter.
   (b) The provisions of Section 1000.3 and Section 1000.4 regarding
satisfactory and unsatisfactory performance in a program shall apply
to preguilty plea programs. If the court finds that (1) the defendant
is not performing satisfactorily in the assigned program, (2) the
defendant is not benefiting from education, treatment, or
rehabilitation, (3) the defendant has been convicted of a crime
specified in Section 1000.3, or (4) the defendant has engaged in
criminal conduct rendering him or her unsuitable for the preguilty
plea program, the court shall reinstate the criminal charge or
charges. If the defendant has performed satisfactorily during the
period of the preguilty plea program, at the end of that period, the
criminal charge or charges shall be dismissed and the provisions of
Section 1000.4 shall apply.
  SEC. 7.  Section 1000.6 of the Penal Code is amended to read:
   1000.6.  (a) Where a person is participating in a pretrial
diversion program or a preguilty plea program pursuant to this
chapter, the person shall be allowed, under the direction of a
licensed health care practitioner, to use medications including, but
not limited to, methadone, buprenorphine, or levoalphacetylmethadol
(LAAM) to treat substance use disorders if the participant allows
release of his or her medical records to the court presiding over the
participant's preguilty plea or pretrial diversion program for the
limited purpose of determining whether or not the participant is
using such medications under the direction of a licensed health care
practitioner and is in compliance with the pretrial diversion or
preguilty plea program rules.
   (b) If the conditions specified in subdivision (a) are met, using
medications to treat substance use disorders shall not be the sole
reason for exclusion from a pretrial diversion or preguilty plea
program. A patient who uses medications to treat substance use
disorders and participates in a preguilty plea or pretrial diversion
program shall comply with all court program rules.
   (c) A person who is participating in a pretrial diversion program
or preguilty plea program pursuant to this chapter who uses
medications to treat substance use disorders shall present to the
court a declaration from his or her health care practitioner, or his
or her health care practitioner's authorized representative, that the
person is currently under their care.
   (d) Urinalysis results that only establish that a person described
in this section has ingested medication duly prescribed to that
person by his or her physician or psychiatrist, or medications used
to treat substance use disorders, shall not be considered a violation
of the terms of the pretrial diversion or preguilty plea program
under this chapter.
   (e) Except as provided in subdivisions (a) to (d), inclusive, this
section shall not be interpreted to amend any provisions governing
diversion programs.
  SEC. 8.  Section 1000.7 is added to the Penal Code, immediately
following Section 1000.6, to read:
   1000.7.  This chapter does not affect a pretrial diversion program
provided pursuant to Chapter 2.7 (commencing with Section 1001).
                                       
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