Plea Bargain Permitted to Dismiss a Drug Charge in Exchange for A Plea To ''Nuisance,'' PC 370, To Avoid Immigration Consequences in California

In an effort to address the adverse immigration consequences of drug convictions, California has passed AB 2195 (Stats. 2022, Ch. 487), which adds PC 372.5 to the Penal Code.

While the primary aim of this bill is to protect non-citizens from the harsh implications of a drug conviction, it also offers benefits to citizens by allowing them to avoid other negative repercussions.

This article will explore the provisions of AB 2195 and its potential impact on individuals facing drug charges.

AB 2195 aims to disrupt the long-standing consequences associated with the war on drugs, particularly those that disproportionately affect economically disadvantaged communities of color. A single drug conviction can have far-reaching implications, leading to homelessness and severely limiting employment opportunities. For non-citizens, the consequences are even more severe, as a drug conviction can result in mandatory deportation, regardless of their ties to the United States.

To address these issues, AB 2195 introduces an alternative plea for individuals charged with drug offenses. The bill grants the prosecution the discretion to offer an alternate plea of public nuisance, on a case-by-case basis, as a substitute for a drug charge, including possession and drug sales. While public nuisance carries the same criminal penalty, it avoids triggering collateral consequences for both immigrants and non-citizens.

The addition of PC 372.5 to the Penal Code outlines the specific conditions under which this plea bargain can be made.

Subdivision (a) of PC 372.5 states that if a defendant is sentenced for a violation of Section 370 (criminal public nuisance) based on a negotiated disposition between the defendant and the prosecution, or pursuant to an indicated sentence of the court, one or more infraction charges alleging drug offenses can be dismissed. In such cases, public nuisance is treated as an infraction punishable by a fine not exceeding $250.

Subdivision (b) of PC 372.5 applies to misdemeanor charges. If a defendant reaches a disposition with the prosecution, leading to the dismissal of one or more misdemeanor charges related to drug offenses, public nuisance is punishable by a fine of up to $1,000, a county jail term of up to one year, or both. It can also be treated as an infraction with a fine of up to $250.

For felony charges, subdivision (c) of PC 372.5 allows for the negotiation of a sentence resulting in the dismissal of one or more felony charges related to drug offenses. In these cases, public nuisance is punishable under the guidelines of PC 1170, subdivision (h), which may include a term of imprisonment ranging from 16 months to three years in state prison or a county jail term of up to one year.

It is important to note that all three subdivisions of PC 372.5 permit plea bargains between the defendant and the prosecution. However, only subdivision (a) allows for this arrangement to be made through the court's indicated sentence.

AB 2195 and the addition of PC 372.5 to the Penal Code offer a plea bargain option to dismiss drug charges in exchange for a plea to public nuisance. By doing so, this legislation aims to prevent the adverse immigration consequences of drug convictions while also benefiting citizens by mitigating collateral damage.