BILL ANALYSIS
AB 358
Page 1
ASSEMBLY THIRD READING
AB 358 (Ammiano)
As Introduced February 23, 2009
Majority vote
PUBLIC SAFETY 5-2
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|Ayes:|Solorio, Furutani, Hill, | | |
| |Ma, Skinner | | |
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|Nays:|Hagman, Anderson | | |
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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.
2)States that entry of judgment may be deferred if it appears to
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the prosecuting attorney that, except for the personal use
cultivation of marijuana, all of the following apply to the
defendant:
a) The defendant has no conviction for any offense 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parole has ever been revoked without thereafter being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)States that if the defendant is found ineligible for deferred
entry of judgment, 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 the sole remedy of a defendant who is
found ineligible for deferred entry of judgment is a
post-conviction appeal.
4)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 be a clear statement
that in lieu of trial, the court may grant deferred entry of
judgment with respect to any eligible crime that is charged,
provided the defendant pleads guilty to each such charge and
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waives time for the pronouncement of judgment.
FISCAL EFFECT : None
COMMENTS : According to the author, "Penal Code Section 1000 et
seq. establishes an intense drug treatment 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 amendments proposed in AB 358 are simple and cost effective.
They allow the defendant, once 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 both the prosecutor and the court have made
a determination means less chance that there will be costly
disputes further along in the proceeding."
Please see the policy committee for a full discussion of this
bill.
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Analysis Prepared by : Kathleen Ragan / PUB. S. / (916) 319-3744
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