BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 358|
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THIRD READING
Bill No: AB 358
Author: Ammiano (D)
Amended: 5/28/09 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/23/09
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Benoit, Huff
ASSEMBLY FLOOR : 47-32, 6/1/09 - See last page for vote
SUBJECT : Deferred entry of judgment in drug cases
SOURCE : California Attorneys for Criminal Justice
DIGEST : This bill allows 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.
ANALYSIS : 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
CONTINUED
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appears to the prosecuting attorney that, except for the
personal use cultivation of marijuana, all of the following
apply to the defendant:
1.The defendant has no conviction for any offense involving
controlled substances prior to the alleged commission of
the charged offense.
2.The offense charged did not involve a crime of violence
or threatened violence.
3.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.
4.The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed.
5.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.
6.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
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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 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.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/24/09)
California Attorneys for Criminal Justice (source)
California Public Defenders Association
Taxpayers for Improving Public Safety
OPPOSITION : (Verified 6/24/09)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Narcotic Officers Association
Riverside Sheriffs' Association
ARGUMENTS IN SUPPORT : The California Attorneys for
Criminal Justice state in support:
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.
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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.
ARGUMENTS IN OPPOSITION : The California District
Attorneys Association state in opposition:
The prosecutor's screening of a defendant for deferred
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.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer,
Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huffman, Jones, Krekorian, Bonnie
Lowenthal, Ma, Mendoza, Monning, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Saldana,
Skinner, Solorio, Swanson, Torlakson, Torres, Torrico,
Yamada, Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
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Harkey, Huber, Jeffries, Knight, Lieu, Logue, Miller,
Nava, Nestande, Niello, Nielsen, Silva, Smyth, Audra
Strickland, Tran, Villines
NO VOTE RECORDED: Block
RJG:nl 6/24/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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