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SB-315 Criminal procedure: COVID-19 Alternative Adjudication Program.(2019-2020)

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Date Published: 07/29/2020 09:00 PM
SB315:v94#DOCUMENT

Amended  IN  Assembly  July 29, 2020
Amended  IN  Assembly  June 25, 2020
Amended  IN  Assembly  July 09, 2019
Amended  IN  Assembly  June 25, 2019
Amended  IN  Senate  March 21, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 315


Introduced by Senator Hertzberg
(Coauthor: Assembly Member Gabriel)(Coauthors: Assembly Members Ting and Wicks)

February 15, 2019


An act to add and repeal Section 1385.2 of the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


SB 315, as amended, Hertzberg. Criminal procedure: COVID-19 Alternative Adjudication Program.
Existing law authorizes a county to establish a pretrial diversion program for defendants who have been charged with a misdemeanor offense and authorizes other diversion programs.
This bill would establish the COVID-19 Alternative Adjudication Program. The bill would require a court to dismiss an accusatory pleading under the program if the defendant meets specified conditions including, among others, that 6 months have passed since the person was released from the arrest that lead to the accusatory pleading custody on the charge and the prosecution fails to provide clear and convincing evidence that the defendant committed a subsequent offense or that the defendant poses an unreasonable risk of danger to public safety, as defined. defendant or minor has not been charged with a misdemeanor or felony occurring after the charge at issue was filed, with specified exceptions. The bill would require a court dismissing a pleading pursuant to the program to determine whether restitution is owed to a victim as a result of an offense dismissed pursuant to the program, and would deem the arrest upon which the charges were based to have never occurred.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1385.2 is added to the Penal Code, to read:

1385.2.
 (a) This section shall be known, and may be cited, as the COVID-19 Alternative Adjudication Program.
(b) The court shall dismiss an accusatory pleading a charge or charges pursuant to this section if all of the following criteria are met:
(1) The charge was not resolved by conviction prior to January 1, 2021.

(1)

(2) The defendant charge is not charged with any of the following:
(A) 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) A violation of paragraph (1) of subdivision (c) of Section 166, or of Section 273.6, where the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.
(C) A violation of Section 136.1 when the punishment is imposed under subdivision (c) of Section 136.1.
(D) A violation of Section 262.
(E) A violation of paragraph (1) of subdivision (e) of Section 243 or of Section 273.5.
(F) A violation of Section 646.9.
(G) A violation of an offense listed in subdivision (c) of Section 290.
(H) A violation of Section 23152 or 23153 of the Vehicle Code.
(I) A violation of Section 29800.
(J) A violation of Section 368.
(K) A violation of Section 273a or 273d.
(L) A violation of Section 422.

(2)

(3) Six months or more have passed since the person was released from the arrest that lead to the accusatory pleading, custody on the charge, or, if the person was not arrested, never in custody on the charge, six months or more have passed since the incident that lead to the charges. charge.

(3)

(4) The prosecution fails to provide clear and convincing evidence that the defendant committed a subsequent misdemeanor or felony while the charge has been pending. defendant or minor has not been charged with a misdemeanor or felony occurring after the charge at issue was filed. However, a charge remains subject to dismissal under this section if the defendant or minor was acquitted of the subsequently filed charge, the subsequently filed charge was dismissed on the motion of the prosecution, or the subsequently filed charge was dismissed following a judicial determination that the charge was not supported by probable cause.

(4)

(5) The defendant or minor does not have a pending violation of the terms of an existing grant of probation, parole, post-release postrelease community supervision, or mandatory supervision.

(5)

(6) The defendant or minor consents to a dismissal pursuant to this section.

(6)The prosecution fails to provide clear and convincing evidence that the defendant poses an unreasonable risk of danger to public safety, as defined in Section 1170.18.

(7) The court does not find that the defendant or minor poses an unreasonable risk of danger to public safety, as defined in Section 1170.18.
(8)  Other than the charges filed in the same complaint or relating to the same incident, the defendant or minor has not had any charge previously dismissed under this section.
(c) If a person would meet the conditions described in subdivision (b) except for a pending violation of the terms of an existing grant of probation, parole, post-release postrelease community supervision, or mandatory supervision, that is not the commission of a new crime, supervision, the court may dismiss the accusatory pleading charge pursuant to this section.
(d) A charge reduced pursuant to subdivision (b) of Section 17 may shall qualify for dismissal pursuant to this section if, after the charge is reduced, it meets the criteria described in subdivision (b).
(e) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the alternatively adjudicated offense and, if owed, order its payment prior to dismissing the case. If restitution cannot be paid in full, the court shall order the judgment to be collected civilly. not dismiss the case unless the defendant or minor agrees that the defendant or minor is liable for the outstanding balance as a civil judgment. However, a defendant’s inability to pay restitution due to indigence shall not be grounds for refusing to dismiss a case pursuant to this section. section, as long as the defendant or minor agrees that they are liable for the unpaid balance as a civil judgment.
(f) If the defense counsel and prosecutor agree, the court may grant a motion to dismiss a charge pursuant to this section without conducting a hearing.

(f)

(g) (1) If a case has been dismissed pursuant to this section, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case pursuant to this section. Once the court dismisses the charges, the arrest upon which dismissal pursuant to this section was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with this subdivision.
(2) Any record filed with the Department of Justice shall indicate the disposition in those cases alternatively adjudicated pursuant to this section. Upon dismissal pursuant to this section, the arrest upon which the charges were based shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest pursuant to Section 851.92. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested, diverted, or alternatively adjudicated for the offense, except as specified in paragraph (3). A record pertaining to an arrest resulting in dismissal pursuant to this section 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.
(3) The defendant shall be advised that, regardless of the dismissal pursuant to this section, both of the following apply:
(A) The arrest upon which the dismissal pursuant to this section was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding paragraphs (1) and (2), this section does not relieve the defendant 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.
(B) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(h) A dismissal pursuant to this section shall be a bar to further prosecution for the same charge.
(i) This section shall not apply retroactively to any charge resolved by conviction prior to January 1, 2021.

(g)

(j) This section shall remain in effect only until January 1, 2022, and as of that date is repealed.