BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 750|
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THIRD READING
Bill No: AB 750
Author: Bass (D)
Amended: 9/1/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 7/7/09
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Benoit, Huff
SENATE APPROPRIATIONS COMMITTEE : 8-5, 8/27/09
AYES: Kehoe, Corbett, Hancock, Leno, Oropeza, Price, Wolk,
Yee
NOES: Cox, Denham, Runner, Walters, Wyland
ASSEMBLY FLOOR : 53-24, 6/2/09 - See last page for vote
SUBJECT : Deferred entry of judgment
SOURCE : San Francisco District Attorney
DIGEST : This bill allows a superior court to develop and
operate a deferred entry of judgment reentry program
targeted at preventing recidivism among non-violent
low-level drug sales offenders.
ANALYSIS : Existing law provides for diversion from
criminal prosecution through a deferred entry of judgment
and sentence when an open case is before any court for
specified violations of drug possession, paraphernalia
possession, being in the presence of drug use, misdemeanor
CONTINUED
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transportation of marijuana, or harvesting of marijuana for
personal use and it appears to the prosecuting attorney
that 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or parole has ever been revoked without thereafter being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. (Section 1000 of the Penal Code)
Existing law states that the prosecuting attorney shall
review his/her file to determine whether or not the
defendant qualifies for a deferred entry of judgment (DEJ)
program. Upon the 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 procedure
shall be completed as soon as possible after the initial
filing of the charges. 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/her
attorney. This procedure is intended to allow the court to
set the hearing for DEJ at the arraignment. If the
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defendant is found ineligible for DEJ, 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/her attorney. The sole
remedy of a defendant who is found ineligible for DEJ is a
post-conviction appeal. (Section 1000 of the Penal Code)
Existing law provides if the prosecuting attorney
determines that DEJ may be applicable to the defendant,
he/she shall advise the defendant and his/her attorney in
writing of that determination. This notification shall
include the following:
1. A full description of the procedures for DEJ.
2. A general explanation of the roles and authorities of
the probation department, the prosecuting attorney, the
program, and the court in the process.
3. A clear statement that in lieu of trial, the court may
grant DEJ with respect to any crime that is charged,
provided that the defendant pleads guilty to each such
charge and waives time for the pronouncement of
judgment; and that upon the defendant's successful
completion of a program, the positive recommendation of
the program authority and the motion of the prosecuting
attorney, the court, or the probation department, but 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.
4. A clear statement that upon any failure of treatment or
condition under the program, or any circumstance
specified in Section 1000.3 of the Penal Code, 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(s) pled, enter judgment, and
schedule a sentencing hearing as otherwise provided in
this code.
5. An explanation of criminal record retention and
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disposition resulting from participation in the DEJ
program and the defendant's rights relative to answering
questions about his/her arrest and DEJ following
successful completion of the program. (Section
1000.1(a) of the Penal Code)
Existing law states that if the defendant consents and
waives his/her right to a speedy trial or a speedy
preliminary hearing, the court may refer the case to the
probation department or the court may summarily grant
deferred entry of judgment if the defendant pleads guilty
to the charge(s) and waives time for the pronouncement of
judgment. When directed by the court, the probation
department shall make an investigation and take into
consideration the defendant's age; employment and service
records; educational background; community and family ties;
prior controlled substance use; treatment history, if any;
demonstrable motivation; and other mitigating factors in
determining whether the defendant is a person who would be
benefited by education, treatment, or rehabilitation. The
probation department shall also determine which programs
the defendant would benefit from and which programs would
accept the defendant. The probation department shall
report its findings and recommendations to the court. The
court shall make the final determination regarding
education, treatment, or rehabilitation for the defendant.
If the court determines that it is appropriate, the court
shall grant deferred entry of judgment if the defendant
pleads guilty to the charge or charges and waives time for
the pronouncement of judgment. (Section 1000.1(b) of the
Penal Code)
Existing law specifies no statement, or any information
procured therefrom, made by the defendant to any probation
officer or drug treatment worker, that is made during the
course of any investigation conducted by the probation
department or treatment program; and prior to the reporting
of the probation department's findings and recommendations
to the court, shall be admissible in any action or
proceeding brought subsequent to the investigation. No
statement, or any information procured therefrom, with
respect to the specific offense with which the defendant is
charged, that is made to any probation officer or drug
program worker subsequent to the granting of deferred entry
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of judgment, shall be admissible in any action or
proceeding, including a sentencing hearing. (Section
1000.1(c) of the Penal Code)
Existing law states a defendant's plea of guilty pursuant
to DEJ shall not constitute a conviction for any purpose
unless a judgment of guilty is entered pursuant to
unsatisfactory completion of the DEJ program. (Section
1000.1(d) of the Penal Code)
This bill provides that a superior court may develop and
operate a deferred entry of judgment reentry program
targeted at preventing recidivism among non-violent
low-level drug sales offenders. The prosecuting attorney
together with the presiding judge and a representative of
the criminal defense bar may agree to establish a "Back on
Track" deferred entry program as specified in this bill.
The agreement shall specify which low-level drug sales
offenses are eligible for the program and a process for
selecting participants.
This bill specifies that the "Back on Track" deferred entry
program shall have the following characteristics:
1. A dedicated calendar.
2. Leadership by a superior court judicial officer who is
assigned by the presiding judge.
3. Clearly defined criteria for successful progress and
completion of the program.
4. Legal incentives for defendants to successfully complete
the program, including dismissal or reduction of
criminal charges upon successful completion of the
program.
5. Close supervision to hold participants accountable to
program compliance, including the use of graduated
sanctions and frequent ongoing appearances before the
court regarding the participants' program progress and
compliance with all program terms and conditions. The
court may also use available legal mechanisms including
return to custody if necessary, for failure to comply
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with the supervised plan.
6. Appropriate transitional programming for participants,
based on available resources from county and community
service providers and other agencies. The transitional
programming may include, but is not limited to, any of
the following:
A. Vocational training, readiness, and placement.
B. Educational training, including assistance with
acquiring a G.E.D. or high school diploma and
assistance with admission to college.
C. Substance abuse treatment.
D. Assistance with obtaining identification cards and
driver's licenses.
E. Parenting skills training and assistance in
becoming compliant with child support obligations.
7. The program may develop a local, public-private
partnership between law enforcement, government
agencies, private employers and community-based
organizations for the purpose of creating meaningful
employment opportunities for eligible former offenders
and to take advantage of existing programs and
incentives for hiring program participants.
This bill provides that the prosecuting attorney shall
determine whether a defendant is eligible for participation
in the deferred entry of judgment reentry program.
This bill provides that if the prosecuting attorney
determines that the defendant may be eligible for the
program, he/she shall advise the defendant and his/her
attorney in writing of the determination. The notice shall
include the following:
1. A full description of the procedures for deferred entry
of judgment.
2. A general explanation of the role and authority of the
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prosecuting attorney, the program and the court in the
process.
3. A clear statement, that in lieu of trial, the court may
grant deferred entry of judgment with respect to the
current crime or crimes charged if the defendant pleads
guilty to each charge and waives time for the
pronouncement of judgment, and that upon the defendant's
successful completion of the program and the motion of
the prosecuting attorney the court will dismiss the
charge or charges.
4. A clear statement that failure to comply with any
condition under the program may result in the
prosecuting attorney or the court making a motion for
entry of judgment, whereupon the court will render a
finding of guilty to the charge(s) pled, enter judgment,
and schedule a sentencing hearing as otherwise provided
in this code.
5. An explanation of criminal record retention and
disposition resulting from participation in the deferred
entry of judgment program and the defendant's rights
relative to answering questions about his/her arrest and
deferred entry of judgment following successful
completion of the program.
This bill provides that if the prosecuting attorney
determines that the defendant is eligible for the program,
the prosecuting attorney shall state for the record the
grounds upon which the determination is based and shall
make this information available to the defendant and
his/her attorney. This procedure is intended to allow the
court to set the hearing for deferred entry of judgment at
the arraignment.
This bill provides that if the prosecuting attorney
determines that the defendant is ineligible for the
program, the prosecuting attorney shall state for the
record the grounds upon which the determination is based
and shall make this information available to the defendant
and his/her attorney.
This bill provides that the sole remedy of a defendant who
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is found ineligible for deferred entry of judgment is a
post conviction appeal.
This bill provides that if the prosecuting attorney does
not deem the defendant eligible, or the defendant does not
consent to participate, the proceedings shall continue as
in any other case.
This bill provides that upon motion by the prosecuting
attorney for an entry of judgment, before entering a
judgment of guilty, the court may hold a hearing to
determine whether the defendant has failed to comply with
the program and should be terminated from the program.
This bill provides that a defendant's plea of guilty
pursuant to the deferred entry program shall not constitute
a conviction for any purpose unless a judgment of guilty is
entered.
This bill provides that counties that opt to create a
deferred entry of judgment program shall not seek
reimbursement for costs associated with the implementation,
development, or operation of the program. To the extent
county resources beyond those of the superior court and the
district attorney are needed to implement the program,
those agencies shall consult with the county board of
supervisors and other impacted county agencies to assess
resources before program implementation.
This bill provides that local law enforcement agencies and
counties administering the program may seek federal or
private funding for the purpose of implementing the
provisions of this chapter.
Existing law provides that whenever a person is diverted
pursuant to a drug diversion program administered by a
superior court pursuant to Section 100.5 of the Penal Code
or is admitted to a deferred entry of judgment program
pursuant to Section 1000, the person successfully completes
the program, and it appears to the judge presiding at the
hearing where the diverted charges are dismissed that the
interests of justice would be served by sealing the records
of the arresting agency and related court files and records
with respect to the diverted person, the judge may order
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those records and files to be sealed, including any record
of arrest or detention, upon the written or oral motion of
any party in the case, or upon the court's own motion, and
with notice to all parties in the cases. (Section 851.90
of the Penal Code)
This bill adds the deferred entry of judgment program
created by this bill to the above provision.
This bill provides that counties, in consultation with
superior courts, may develop and implement court-based
reentry programs, to be operated as pilot programs in San
Francisco and two other counties until January 1, 2012.
This bill makes the following uncodified legislative
findings:
1. The San Francisco District Attorney's office has
developed an effective reentry program, Back On Track,
that reduces recidivism among first-time, low-level,
nonviolent felony drug offenders and costs less than
traditional corrections approaches. The three year
recidivism rate for Back on Track participants is
significantly lower than the 53 percent recidivism rate
for the same population in state prison. As a result,
the Back on Track program has been selected as a
national model. This act is intended to facilitate the
replication of this successful program.
2. Successful reentry models combine strict accountability
with effective mechanisms for offenders to become
self-sufficient and crime free.
3. Successful reentry models include public-private
partnerships among law enforcement, government agencies,
business and labor associations, private employers and
community-based organizations, formed to connect former
offenders with living wage employment opportunities and
to take advantage of incentives.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 9/3/09)
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San Francisco District Attorney (source)
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
ARGUMENTS IN SUPPORT : According to the author, "Existing
law does not expressly authorize counties to establish
collaborative courts to assist offenders to reenter society
without re-offending. Specifically, the bill provides
express statutory authorization for the San Francisco
District Attorney's Office's promising Back On Track
program, in which a collaborative court assists and
supervises low-level drug offenders with achieving
specified benchmarks in education, employment, child
support and other basic skills for reducing the risks of
re-offending. Based on this legislation, other counties
could establish a similar model at their option."
ASSEMBLY FLOOR :
AYES: Adams, 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, Huber, Huffman, Jones, Krekorian, Lieu,
Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, Niello,
John A. Perez, V. Manuel Perez, Portantino, Price,
Ruskin, Salas, Saldana, Skinner, Solorio, Swanson,
Torlakson, Torres, Torrico, Tran, Yamada, Bass
NOES: Anderson, Bill Berryhill, Tom Berryhill, Blakeslee,
Conway, Cook, DeVore, Emmerson, Fletcher, Fuller, Gaines,
Garrick, Gilmore, Harkey, Jeffries, Knight, Logue,
Miller, Nestande, Nielsen, Silva, Smyth, Audra
Strickland, Villines
NO VOTE RECORDED: Block, Duvall, Hagman
RJG:mw 9/1/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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