BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 358 (Ammiano)
As Amended May 28, 2009
Hearing date: June 23, 2009
Penal Code
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DEFERRED ENTRY OF JUDGMENT IN DRUG CASES:
REVIEW OF PROSECUTOR'S DETERMINATION OF DEFENDANT'S
INELIGIBILITY
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation: SB 1369 (Kopp) - Ch. 1132, Stats. 1996
Support: California Public Defenders Association; Taxpayers for
Improving Public Safety
Opposition:California District Attorneys Association;
Association for Los Angeles Deputy Sheriffs; California Narcotic
Officers Association; Riverside Sheriffs' Association
Assembly Floor Vote: Ayes 47 - Noes 32
KEY ISSUE
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IN A DRUG POSSESSION CASE, SHOULD A DEFENDANT WHO SEEKS DEFERRED
ENTRY OF JUDGMENT AND PLACEMENT IN A DRUG TREATMENT PROGRAM BE
ALLOWED TO OBTAIN TRIAL-COURT REVIEW OF THE PROSECUTOR'S
DECISION THAT THE DEFENDANT IS NOT ELIGIBLE FOR THE DEFERRED
ENTRY OF JUDGMENT?
PURPOSE
The purpose of this bill is to allow a defendant who seeks
deferred entry of judgment (Pen. Code 1000) in a drug
possession matter to seek review by the trial court of the
prosecutor's decision that the defendant is ineligible for the
program, rather than being required to file a post-conviction
appeal to challenge the prosecutor's determination.
Existing law provides that entry of judgment may be deferred
with respect to defendants charged with specified drug
possession crime or cultivation of marijuana for personal use.
(Pen. Code 1000, subd. (a).)
Existing law (Pen. Code 1000, subd. (a)(1) through (6))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:
The defendant has no conviction for any offense
involving controlled substances prior to the alleged
commission of the charged offense.
The offense charged did not involve a crime of violence
or threatened violence.
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.
The defendant's record does not indicate that probation
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or parole has ever been revoked without thereafter being
completed.
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.
The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense.
Existing law requires the prosecuting attorney to review his or
her file to determine whether the defendant is eligible for
deferred entry of judgment. Upon agreement of the prosecuting
attorney, law enforcement, the public defender and the presiding
judge, or a judge designated by the presiding judge, this review
shall be completed as soon as possible after the initial filing
of the charges. (Pen. Code 1000, subd. (b).)
Existing law provides that if the defendant is found eligible,
the prosecuting attorney shall declare in writing or state for
the record the grounds for the determination, and shall make
this information available to the defendant and counsel. This
procedure is to allow the court to set the hearing for deferred
entry of judgment at the arraignment. (Pen. Code 1000, subd.
(b).)
Existing law states that if the defendant is found ineligible,
the prosecuting attorney shall file a declaration 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. (Pen. Code 1000, subd. (b).)
Existing law specifies that the sole remedy of a defendant who
is found ineligible for deferred entry of judgment is a
post-conviction appeal. (Pen. Code 1000, subd. (b).)
Existing law provides that the defendant in a deferred entry
matter must plead guilty and waive time for pronouncement of
judgment. The court may grant deferred entry and place the
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defendant in a treatment program following evaluation of the
defendant and prospective programs by the probation department.
Upon the defendant's successful completion of a program, as
specified, the court shall dismiss the charge or charges against
the defendant. Dismissal shall be made no sooner than 18 months
and no later than three years from the defendant's referral to
the program (Pen. Code 1000.1, subd. (b), 1000.2. 1000.3.)
Existing law provides that upon failure of treatment, as
specified, a conviction of a misdemeanor indicating a propensity
for violence, or conviction of a felony, the prosecuting
attorney, the probation department or the court may move for
entry of judgment. If the motion is granted, the court shall
find the defendant guilty, enter judgment, and schedule a
sentencing hearing. (Pen. Code 1000.3.)
This bill 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.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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1. Need for This Bill
According to the author:
Penal Code Section 1000 et seq. establishes an intense
drug treatment program for a narrow category of first
time drug offenders. The goal of the 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 the 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.
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 prosecutor is solely responsible for determining
defendant's eligibility. He or she must "file ? 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." (Pen. Code
1000, subd. (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.
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This avoids 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.
2. No Review is Available in the Trial Court of the Prosecutor's
Determination that a Defendant is Ineligible for Deferred
Entry of Judgment
Sole Remedy for Denial of Deferred Entry of Judgment is
Post-Conviction Appeal
California appellate courts have consistently held that a
defendant may not challenge in the trial court the prosecutor's
determination that the defendant is not eligible for deferred
entry of
judgment. A defendant's sole remedy in such a case is to appeal
from the judgment. Similar rules controlled the former system
of true diversion. (People v. Wright (2002) 99 Cal.App.4th
201.)
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Defendants have argued that granting the prosecutor sole
authority to determine a defendant's eligibility for deferred
entry violates the separation of powers doctrine. In rejecting
that argument, reviewing courts have held that the prosecutor
does not resolve factual conflicts - a judicial function - but
simply determines if the case file includes some evidence that
the defendant's conduct involved violation of another drug crime
that is covered by the deferred entry law. (People v. Bracket
(1994) 25 488, 499-501.)
The appellate courts can overrule the prosecutor's decision that
a defendant is ineligible for deferred entry or diversion.
However, the negative determination would likely be upheld
because of the deferential substantial evidence standard of
review that applies to such decisions. (People v. Hayes (1985)
163 Cal.App.3d 371, 375.) Arguably, in cases where the
appellate court found the question to be very close, it is
likely that a trial court could well have overruled the
prosecutor's decision. (People v. McAlister (1990) 225
Cal.App.3d 941, 945; Butler v. Superior Court (1998) 63 Cal.
App. 4th 64, 70, con. op.)
As noted by the sponsor, challenging a deferred entry denial
through appeal is a complex and lengthy process. Where a
defendant is denied deferred entry of judgment, he or she can
demand a jury trial. If the defendant is convicted at trial, he
or she may file an appeal. A new lawyer for the appeal will be
appointed for an indigent defendant. The appeal would consider
numerous issues other than the deferred entry issue. A
defendant who pleads guilty has a limited right to appeal, but
he or she may challenge the deferred entry determination, any
adverse ruling on a motion to suppress evidence and the sentence
imposed. If the appellate court rules for the defendant, he or
she would be returned to the trial court for the deferred entry
program - essentially taking the case full circle.
3. Argument in Support
The California Attorneys for Criminal Justice argue in support:
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AB 358 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 criteria 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.
4. Argument in Opposition
The California District Attorneys Association argues in
opposition:
The prosecutor's screening of a defendant for deferred
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entry of judgment 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.
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