BILL ANALYSIS
AB 358
Page 1
GOVERNOR'S VETO
AB 358 (Ammiano)
As Amended May 28, 2009
2/3 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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|ASSEMBLY: |47-32|(June 1, 2009) |SENATE: |21-18|(August 24, |
| | | | | |2009) |
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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
AB 358
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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
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or parole has ever been revoked without thereafter being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; and,
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
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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.
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 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
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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.
GOVERNOR'S VETO MESSAGE :
"This measure would allow trial judges to review a prosecutor's
determination of a defendant's eligibility for a deferred entry
of judgment program. While there have been rare instances where
a prosecutor has made an erroneous determination as to
eligibility, existing law already provides an adequate remedy.
There is no evidence that requiring judges to review the
prosecutor's determination would be an effective use of court
resources or would improve the existing process by which
determining eligibility for a deferred entry of judgment program
is done."
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744
FN: 0003360