As California society generally comes to agree on the preference of rehabilitation over incarceration for first-time minor drug offenders, there will inevitably be a need for changes in the law to accommodate the new paradigm. Under current law, those first-time offenders charged with simple possession of a small amount of drugs may participate in a diversionary program. Thus, qualified drug offenders will enter a "deferred entry of judgment," which is, in essence, a guilty plea with the criminal sentence being deferred.
After the defendant pleads guilty, he or she is diverted into a court-approved drug rehab program. If the individual successfully graduates from the program, the charges are dismissed and the conviction is erased. That procedure, however, can be problematic for persons who will be hurt by having drug convictions, albeit temporary ones, on their records.
One group of individuals who run into serious problems are immigrants. Under federal law, an immigrant can be deported after convictions for most criminal offenses other than summary offenses and traffic tickets. Because the deportation policy is based on the defendant pleading guilty, most immigrants, even if here legally, could be deported if they try to take advantage of the diversionary sentencing program by entering the required guilty plea.
Consequently, a state legislator has offered an amendment to the law that would dispense with the up-front guilty plea. If a defendant does not complete the program, the prosecution would resume. In this manner, an immigrant could still participate in the diversionary program.
The legal change would treat California immigrants the same as citizens for purposes of the drug rehab program. Thus, a first-time, minor offender charged with possession of a small amount of illegal drugs could enter the rehab program despite being an immigrant. The individual could still be deported upon failing to complete the program. A defendant with a minor drug charge, therefore, will want to assure that criminal defense counsel is consulted in order to know that all procedures are followed correctly and one's rights are fully protected.
Source: Los Angeles Times, "Noncitizens and America's drug laws", April 29, 2015