BILL ANALYSIS
AB 358
Page 1
Date of Hearing: May 12, 2009
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 358 (Ammiano) - As Introduced: February 23, 2009
SUMMARY : Authorizes a court, at the defendant's request, to
review the prosecuting attorney's determination of ineligibility
for deferred entry of judgment with respect to specified
controlled substance violations where the defendant has no prior
felony convictions within the prior five years. Specifically,
this bill :
1)Amends the deferred entry of judgment procedure to allow a
court, as well as the prosecuting attorney, to determine that
the defendant may be eligible for deferred entry of judgment.
2)Provides that at the request of the defendant, the court may
review the prosecuting attorney's determination that a
defendant is ineligible, and authorizes the court to make the
final determination as to eligibility.
EXISTING LAW :
1)Provides that entry of judgment may be deferred with respect
to defendants charged with certain enumerated crimes related
to controlled substances, including but not limited to
possession of opiates, stimulants, any controlled substance
classified in Schedules III, IV, or V, which is a narcotic
drug and procured for the personal use of the defendant,
unless upon the written prescription of an authorized medical
caregiver. This section also applies to persons charged with
cultivation of marijuana for personal use. [Penal Code
Section 1000(a).]
2)States that entry of judgment may be deferred if it appears to
the prosecuting attorney that, except for the personal use
cultivation of marijuana, all of the following apply to the
defendant: [Penal Code Section 1000(a)(1) through (6.)]
a) The defendant has no conviction for any offense
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involving controlled substances prior to the alleged
commission of the charged offense.
b) The offense charged did not involve a crime of violence
or threatened violence.
c) 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.
d) The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed.
e) 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.
f) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense.
3)Requires the prosecuting attorney to review his or her file to
determine whether the above conditions of Penal Code Section
1000(a)(1) though (6) apply to the defendant. Provides that
upon agreement of the prosecuting attorney, law enforcement,
the public defender and the presiding judge of the criminal
division of the superior court, or a judge designated by the
presiding judge, this review procedure shall be completed as
soon as possible after the initial filing of the charges.
[Penal Code Section 1000(b).]
4)Provides that 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. Specifies
that this procedure is intended to allow the court to set the
hearing for deferred entry of judgment at the arraignment.
[Penal Code Section 1000(b).]
5)States that if the defendant is found ineligible for deferred
entry of judgment, the prosecuting attorney shall file with
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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. Specifies that the sole remedy of a defendant who
is found ineligible for deferred entry of judgment is a
post-conviction appeal. [Penal Code Section 1000(b).]
6)Provides that 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 specified
information about the procedures for deferred entry of
judgment, including a clear statement that in lieu of trial,
the court may grant deferred entry of judgment with respect to
any crime specified in Penal Code Section 1000(a) that is
charged, provided the defendant pleads guilty to each such
charge and waives time for the pronouncement of judgment.
Upon the defendant's successful completion of a program, as
specified, the positive recommendation of the program
authority and the motion of the prosecuting attorney, the
court, or the probation department, no sooner than 18 months
and no later than three years from the date of the defendant's
referral to the program, the court shall dismiss the charge or
charges against the defendant. [Penal Code Section
1000.1(a).]
7)Requires the notification to include a clear statement that
upon any failure of treatment or condition under the program,
or any circumstance specified in Penal Code Section 1000.3
(including but not limited to unsatisfactory performance or
failure to benefit from the program; conviction of a
misdemeanor indicating a propensity for violence, or
conviction of a felony), the prosecuting attorney or the
probation department or the court on its own may make a motion
to the court for entry of judgment, and the court shall render
a finding of guilt to the charge or charges pled, enter
judgment, and schedule a sentencing hearing. [Penal Code
Section 1000.1(a)(4).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "Penal Code
Section 1000 et seq. establishes an intense drug treatment
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diversion program for a narrow category of first time drug
offenders. The goal of this pre-judgment program is to
provide an alternative for the experimental or tentative drug
user 'before he becomes deeply involved with drugs, to show
him the error of his ways by prompt exposure to educational
and counseling programs.' [People v. Terry (1999) 73 Cal.
App. 4th 661, 664.] Upon a guilty plea the defendant is
referred directly to a drug counseling program. After
successful completion of this program and if the individual
does not violate the law for a period of 18 months to three
years, the court will dismiss the drug charges.
"As the law currently stands, a defendant is eligible for Penal
Code Section 1000 diversion only if he or she meets specific
criteria as described in statute. For example, the underlying
offense must not involve violence and the defendant cannot
have a history of violating probation or parole.
"The person solely responsible for determining if a defendant is
eligible is the prosecutor. The prosecutor 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
shall make this determination available to the defendant and
his or her attorney. [Penal Code Section 1000(b).] The
courts have held that placing the sole discretion with the
prosecutor does not violate the separation of powers doctrine.
Notwithstanding the statutory requirement that the prosecutor
explain his or her decision to the court, a judge is precluded
from immediately reviewing the prosecutor's denial of
eligibility. Instead, the defendant's only option is to file
a formal post-conviction appeal. Upon successful appeal, the
judgment must be set aside and the case remanded to allow the
court a chance to exercise its discretion to grant the
diversion. This, of course, is a very lengthy and costly
process for all parties.
"The amendments proposed in AB 358 are simple and cost
effective. They allow the defendant, one he or she has
learned the basis for the determination of ineligibility for
diversion, to request that the judge review that decision and
make the final determination. This allows for a finding from
the Court short of going through the appellate process. It
does not take away from the prosecutor's role; it simply
allows for a review process right at the beginning of the
proceeding to assure that there are no abuses. The fact that
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both the prosecutor and the court have made a determination
means less chance that there will be costly disputes further
along in the proceeding.
"California has continued to make great strides in the
recognition that rehabilitation can be both cost effective and
successful in improving public safety. The more persons that
we can offer to rehabilitate rather than house in jail, the
more chances we have of stopping those persons from escalating
in their crimes. AB 358 has no cost and allows for the court
to be sure that all persons that are eligible for diversions
are given that chance while reducing financial pressures on
our judicial system."
2)Summary : The California Supreme Court has stated that "the
deferred entry of judgment statutes (Penal Code Section 1000
et seq.) are in some ways analogous to Proposition 36.
Pursuant to Penal Code Section 1000, a defendant who has been
charged with specified drug offenses and has not committed a
crime of violence or threatened violence may undergo a drug
education and treatment program in lieu of undergoing a
criminal prosecution and upon satisfactory completion may
obtain dismissal of the criminal charge. [People v. Canty,
(2004) 32 Cal. 4th 1266.]
"However, Section 1000 permits pretrial diversion only as to the
specifically enumerated drug offenses" and a defendant charged
with a drug-related offense not listed in Penal Code Section
1000 is rendered ineligible for drug diversion under Penal
Code Section 1000.
3)Legislative Intent : In the case of People v. Kirk, (2006) 141
Cal. App. 4th 715, the Court discussed the rationale for the
Penal Code Section 1000 procedures for deferred entry of
judgment. "Sections 1000 through 1000.4 authorize the courts
to 'divert' from the normal criminal process persons who are
formally charged with first-time possession of drugs . . . and
are found to be suitable for treatment and rehabilitation at
the local level." [People v. Superior Court (On Tai Ho)
(1974) 11 Cal.3d 59, 61-62.] "The purpose of section 1000 is
two-fold. First, diversion permits the courts to identify the
experimental or tentative user before he becomes deeply
involved with drugs, to show him the error of his ways by
prompt exposure to educational and counseling programs in his
own community, and to restore him to productive citizenship
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without the lasting stigma of a criminal conviction. Second,
reliance on this quick and inexpensive method of disposition,
when appropriate, reduces the clogging of the criminal justice
system by drug abuse prosecutions and thus enables courts to
devote their limited time and resources to cases requiring
full criminal prosecution." (Id., 11 Cal.3d at pp. 61-62, fn.
omitted.)
To achieve these specific goals, eligible defendants are
narrowly defined. The Legislature determined a defendant must
satisfy six factors to qualify. 2 Relevant to this case is the
first requirement: "The defendant has no conviction for any
offense involving controlled substances prior to the alleged
commission of the charged offense." [Penal Code Section
1000(a)(1).]
The Court proceeded to discuss statutory interpretation, stating
that Kirk does not dispute the fact he pleaded guilty to an
offense involving controlled substances in federal court a few
months prior to requesting diversion, but he argues the entry
of a guilty plea is not a "conviction" within the meaning of
Penal Code Section 1000. Therefore, whether Kirk is eligible
for a deferred entry of judgment depends on the statutory
interpretation of the term "conviction."
The Court stated, "We are aware "the term 'conviction' has no
fixed definition and has been interpreted by the courts of
this state to have various meanings, depending upon the
context in which the word is used. Consequently, we must
first examine the language of the statute enacted, giving the
words their usual, ordinary meaning. The language is
construed in the context of the statute as a whole and the
overall statutory scheme, so that we give significance to
every word, phrase, sentence, and part of an act in pursuance
of the legislative purpose. Literal construction should not
prevail if it is contrary to the legislative intent apparent
in the statute. The intent prevails over the letter, and the
letter will, if possible, be so read as to conform to the
spirit of the act. An interpretation that renders related
provisions nugatory must be avoided; each sentence must be
read not in isolation but in the light of the statutory
scheme; and if a statute is amenable to two alternative
interpretations, the one that leads to the more reasonable
result will be followed." [In re Ogea (2004) 121 Cal.App.4th
974, 980-981.]
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In some cases, the term "conviction" is defined "in a narrow
sense signifying a verdict or guilty plea," and other times
the term is "given a broader scope so as to include both the
jury verdict (or guilty plea) and the judgment pronounced
thereon. [Boyll v. State Personnel Board (1983) 146 Cal. App.
3d 1070, 1073-1074.] For example, when a prior conviction
goes to the determination of "civil consequences the
conviction must be interpreted in a broader sense . . . . "
(Id. at p. 1076.) A civil disability flowing from a
conviction often concerns a valuable right of citizenship and,
in this context, any ambiguity in the term "conviction" is
resolved in favor of the citizen. (Ibid.) Accordingly, a
"conviction" will require not only the ascertainment of guilt,
but also the judgment entered thereon. [Ibid. (construing
statute barring those with convictions from being employed as
peace officers); Helena Rubenstein Internat. v. Younger (1977)
71 Cal. App. 3d 406, 418 (139 Cal. Rptr. 473) (construing
constitutional provision disqualifying those with convictions
from holding public office); Truchon v. Toomey (1953) 116 Cal.
App. 2d 736, 744-745 (254 P.2d 638) (construing constitutional
provision disqualifying those with convictions from voting).]
Yet, in criminal cases, courts have held an admission or finding
of guilt is sufficient to establish a "conviction." "Where
the existence of a prior conviction triggers increased
punishment, courts interpret 'conviction' to mean the factual
ascertainment of guilt by verdict or plea." [People v.
Williams (1996) 49 Cal.App.4th 1632, 1637; People v. Shirley
(1993) 18 Cal.App.4th 40, 46-47.]
The Court then considered the interpretation of "conviction" for
purposes of Penal Code Section 1000. "Kirk argues his guilty
plea is not a disqualifying event for purposes of section 1000
because until sentence is pronounced he has not suffered a
conviction. He essentially urges us to ignore his conduct and
adopt a literal and constricted definition of the term
'conviction.' We decline to do so.
"As noted earlier, the Legislature in enacting Penal Code
Section 1000 set forth statutory criteria to identify the
incidental and inexperienced drug user who would likely
respond positively to prompt exposure to education and
counseling programs and who should be diverted from the normal
criminal process. [People v. Superior Court (On Tai Ho),
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supra, 11 Cal.3d at pp. 61-62.] In determining a defendant's
eligibility for diversion, the court must evaluate conduct to
determine whether the defendant is an experimental or
tentative user who is amenable to treatment and
rehabilitation. Just as a defendant is more severely punished
for bad conduct under section 667, a defendant under section
1000 benefits from what is basically good conduct, i.e., the
lack of prior violent or drug-related criminal behavior.
"In entering his plea of guilty in federal court, Kirk
necessarily admitted his involvement with a controlled
substance. It is the factual determination of this conduct
that renders Kirk ineligible for diversion. In adopting
section 1000, the Legislature did not intend to benefit a drug
offender 'based solely on the fortuity of the timing of
sentencing.'
"Additionally, an express objective of Penal Code Section 1000
is to divert qualified defendants from the normal criminal
process. As a defendant pending sentencing on a federal
felony charge, Kirk is already entangled in the normal
criminal process. A deferred entry of judgment in state court
will not extricate Kirk from the criminal justice system.
"In light of the above, we conclude we are not faced with two
equally reasonable but conflicting interpretations of
'conviction' and, therefore, need apply the rule requiring
courts to adopt the more lenient interpretation of ambiguous
penal statutes. Courts will not construe an ambiguity in
favor of the accused if 'such a construction is contrary to
the public interest, sound sense, and wise policy.' Rather,
[t]he major consideration in interpreting a criminal statute
is legislative purpose. "
4)Appellate Review Available Only On Direct Appeal after a
Conviction: Courts have held that the express language of
Penal Code Section 1000(b) permits appellate review of a
determination that an accused drug offender is not eligible
for deferred entry of judgment only on direct appeal after a
conviction. [Butler v. Superior Court (1998) 63 Cal. App. 4th
63; rev. Den. 1998 Cal. LEXIS 4596.] As stated in People v.
Kirk, supra, the major consideration in interpreting a
criminal statute is legislative purpose.
As currently written, courts have no option but to support the
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statute's assignment of the role of the prosecutor as the sole
decision-maker with respect to eligibility for deferred entry
of judgment. If the prosecutor makes an error in judgment in
applying the eligibility factors, that error cannot be
addressed by the judicial system until the defendant has been
tried, convicted, sentenced, and then appeals his or her
conviction. In view of the often crowded trial court
calendars, the heavy workloads in most district attorneys'
offices, and the time and cost associated with the process of
criminal prosecution, is it reasonable to eliminate many
time-consuming steps in the process by allowing a court a role
at the front end of the diversion process? If the court can
correct a prosecutor's error of judgment in applying the
eligibility factors at the beginning of the process, the time
and cost associated with the arraignment, pre-trial motions,
preliminary hearing, jury selection and jury trial, verdict
deliberations, and sentencing can be eliminated, freeing these
resources for the prosecution of more serious offenders.
Penal Code Section 1000 makes clear that its legislative purpose
is rehabilitative. As one court stated, the purpose is "to
identify the incidental and inexperienced drug user who would
likely respond positively to prompt exposure to education and
counseling programs and who should be diverted from the normal
criminal process. [People v. Superior Court (On Tai Ho),
supra, 11 Cal.3d at pp. 61-62.] "In determining a defendant's
eligibility for diversion, the court must evaluate conduct to
determine whether the defendant is an experimental or
tentative user who is amenable to treatment and
rehabilitation. Just as a defendant is more severely punished
for bad conduct under Penal Code Section 667, a defendant
under Penal Code Section 1000 benefits from what is basically
good conduct, i.e., the lack of prior violent or drug-related
criminal behavior." (Id.)
5)Will This Bill Promote Greater Efficiency and Cost Savings In
the Criminal Trial Courts ? In view of the rehabilitative
purposes of Penal Code Section 1000, as well as the heavy
workload in many prosecutors' offices, is it reasonable and
cost-effective to require a full criminal prosecution,
including trial and conviction, before a defendant is provided
the opportunity to address a technical error in the
application of the eligibility criteria by requiring a full
appeal to the court of appeals?
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6)Argument in Support : According to the California Attorneys
for Criminal Justice (the sponsor of this bill), "The proposed
amendments will remedy existing problems with Penal Code
section 1000 and allow the court to exercise discretion in
determining eligibility for this drug diversion program. [A]s
the law currently stands, a defendant is eligible for Penal
Code Section 1000 diversion only if he or she meets specific
criteria as specified in the statute. For example, the
underlying offense must not involve violence and the defendant
cannot have a history of violating probation or parole.
"The person solely responsible for determining if a defendant is
eligible is the prosecutor. [T]he Courts have held that
placing the sole discretion with the prosecutor does not
violate the separation of powers doctrine. Notwithstanding
the statutory requirement that the prosecutor explain his or
her decision to the court, a judge is precluded from
immediately reviewing the prosecutor's denial of eligibility.
Instead, the defendant's only option is to file a formal
post-conviction appeal. Upon successful appeal, the judgment
must be set aside and the case remanded to allow the trial
court a chance to exercise its discretion to grant the
diversion. This, of course, is a very lengthy and costly
process for all parties.
"This [bill] does not take away from the prosecutor's role; it
simply allows for a review process right at the beginning of
the proceeding to assure that there are no abuses. The fact
that both the prosecutor and the court have made a
determination means less chance that there will be costly
disputes further along in the proceeding."
7)Arguments in Opposition :
a) According to the California Narcotics Officers'
Association, " . . . opposes AB 358, stating that it would
undermine the role of the District Attorney with
determining whether or not a drug defendant is eligible for
Penal Code Section 1000 diversion. Under current law,
those determinations are made by the District Attorney and
the defendant has the power to challenge the District
Attorney's determination on appeal.
"AB 358 would change that procedure by giving the court the
ability to substitute its own determination for that of the
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District Attorney. Under AB 358, the defendant may request
the court to immediately examine and overturn the District
Attorney's determination. We are unaware of why the
current system is deficient and must respectfully oppose
this legislation."
b) According to the California District Attorneys
Association, "The prosecutor's screening is not a judicial
function and, in fact, no hearing is necessary unless a
resolution of factual issues is required. This bill would
allow a judge, at the defendant's request, to review the
prosecutor's determination of ineligibility and ultimately
make the 'final determination.' Unfortunately, we do not
see the need to change the existing procedure. We
understand that the cases that involve some factual issue
to be resolved are extremely rare. More specifically, four
of the six criteria that determine eligibility are
ascertained by a review of the defendant's record. The
other two - the crime did not involve violence or the
threat of violence and no evidence of drug violations other
than DEJ-eligible offenses - do not seem difficult to
determine."
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice (Sponsor)
Opposition
California District Attorneys Association
California Narcotics Officers' Association
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744