BILL ANALYSIS
AB 1706
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Date of Hearing: March 16, 2010
Consultant: Meghan Masera
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1706 (Ammiano) - As Introduced: February 1, 2010
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, or 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. [Penal Code
Section 1000(a).]
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 [Penal Code Section 1000(a)(1) through (6)]:
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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or parole has ever been revoked without thereafter being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)Requires the prosecuting attorney to review his or her file to
determine whether the above conditions of Penal Code Section
1000(a)(1) though (6) apply to the defendant. Provides that
upon 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 review procedure shall be completed as
soon as possible after the initial filing of the charges.
[Penal Code Section 1000(b).]
4)Provides that 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 or her attorney. Specifies
that this procedure is intended to allow the court to set the
hearing for deferred entry of judgment at the arraignment.
[Penal Code Section 1000(b).]
5)States that if the defendant is found ineligible for deferred
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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. [Penal Code Section 1000(b).]
6)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 include specified
information about the procedures for deferred entry of
judgment, including a clear statement that in lieu of trial,
the court may grant deferred entry of judgment with respect to
any crime specified in Penal Code Section 1000(a) that is
charged, provided the defendant pleads guilty to each such
charge and waives time for the pronouncement of judgment.
Upon the defendant's successful completion of a program, as
specified, the positive recommendation of the program
authority and the motion of the prosecuting attorney, the
court, or the probation department, 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. [Penal Code Section
1000.1(a).]
7)Requires the notification to include a clear statement that
upon any failure of treatment or condition under the program,
or any circumstance specified in Penal Code Section 1000.3
(including, but not limited to, unsatisfactory performance or
failure to benefit from the program; conviction of a
misdemeanor indicating a propensity for violence, or
conviction of a felony), 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 or charges pled, enter
judgment, and schedule a sentencing hearing. [Penal Code
Section 1000.1(a)(4).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "Penal Code
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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
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
court a chance to exercise its discretion to grant the
diversion. This, of course, is a very lengthy and costly
process for all parties.
"The amendments proposed in AB 1706 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
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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.
"California has continued to make great strides in the
recognition that rehabilitation can be both cost effective and
successful in improving public safety. The more persons that
we can offer to rehabilitate rather than house in jail, the
more chance we have of stopping those persons from escalating
in their crimes. AB 1706 has no cost and allows for the court
to be sure that all persons who are eligible for diversions
are given that chance while reducing financial pressures on
our judicial system."
2)Summary : The California Supreme Court has stated that "the
deferred entry of judgment statutes (Penal Code Section 1000
et seq.) are in some ways analogous to Proposition 36.
Pursuant to Penal Code Section 1000, a defendant who has been
charged with specified drug offenses and has not committed a
crime of violence or threatened violence may undergo a drug
education and treatment program in lieu of undergoing a
criminal prosecution and upon satisfactory completion may
obtain dismissal of the criminal charge. [People v. Canty,
(2004) 32 Cal. 4th 1266.]
"However, Section 1000 permits pretrial diversion only as to the
specifically enumerated drug offenses" and a defendant charged
with a drug-related offense not listed in Penal Code Section
1000 is rendered ineligible for drug diversion under Penal
Code Section 1000."
3)Statutory Interpretation : In the case of People v. Kirk,
(2006) 141 Cal. App. 4th 715, the court discussed the
rationale for the Penal Code Section 1000 procedures for
deferred entry of judgment. "Sections 1000 through 1000.4
authorize the courts to 'divert' from the normal criminal
process persons who are formally charged with first-time
possession of drugs . . . and are found to be suitable for
treatment and rehabilitation at the local level." [People v.
Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61-62.] "The
purpose of section 1000 is two-fold. First, diversion permits
the courts to identify the experimental or tentative user
before he becomes deeply involved with drugs, to show him the
error of his ways by prompt exposure to educational and
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counseling programs in his own community, and to restore him
to productive citizenship without the lasting stigma of a
criminal conviction. Second, reliance on this quick and
inexpensive method of disposition, when appropriate, reduces
the clogging of the criminal justice system by drug abuse
prosecutions and thus enables courts to devote their limited
time and resources to cases requiring full criminal
prosecution." (Id., 11 Cal.3d at pp. 61-62.)
To achieve these specific goals, eligible defendants are
narrowly defined. The Legislature determined a defendant must
satisfy six factors to qualify. Relevant to Kirk is the first
requirement: "The defendant has no conviction for any offense
involving controlled substances prior to the alleged
commission of the charged offense." [Penal Code Section
1000(a)(1).]
In Kirk, the defendant did not dispute the fact that he pleaded
guilty to an offense involving controlled substances in
federal court a few months prior to requesting diversion.
However, he argued that the entry of a guilty plea is not a
"conviction" within the meaning of Penal Code Section 1000.
Therefore, whether Kirk was eligible for a deferred entry of
judgment fell on the court's statutory interpretation of the
term "conviction."
The court explained, "In entering his plea of guilty in federal
court, [the defendant] necessarily admitted his involvement
with a controlled substance. It is the factual determination
of this conduct that renders Kirk ineligible for diversion.
In adopting section 1000, the Legislature did not intend to
benefit a drug offender 'based solely on the fortuity of the
timing of sentencing.' "
"Additionally, an express objective of Penal Code Section 1000
is to divert qualified defendants from the normal criminal
process. As a defendant pending sentencing on a federal
felony charge, Kirk is already entangled in the normal
criminal process. A deferred entry of judgment in state court
will not extricate Kirk from the criminal justice system."
In light of this reasoning, the court concluded that there were
two equally reasonable but conflicting interpretations of
"conviction" and, therefore, decided to apply the rule
requiring courts to adopt the more lenient interpretation of
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ambiguous penal statutes. "Courts will not construe an
ambiguity in favor of the accused if 'such a construction is
contrary to the public interest, sound sense, and wise
policy.' Rather, [t]he major consideration in interpreting a
criminal statute is legislative purpose. "
4)Appellate Review Available Only On Direct Appeal after a
Conviction: Courts have held that the express language of
Penal Code Section 1000(b) permits appellate review of a
determination that an accused drug offender is not eligible
for deferred entry of judgment only on direct appeal after a
conviction. [Butler v. Superior Court (1998) 63 Cal. App. 4th
64; rev. den. 1998 Cal. LEXIS 4596.] As stated in People v.
Kirk, supra, the major consideration in interpreting a
criminal statute is legislative purpose.
As currently written, courts have no option but to support the
statute's assignment of the role of the prosecutor as the sole
decision-maker with respect to eligibility for deferred entry
of judgment. If the prosecutor makes an error in judgment in
applying the eligibility factors, that error cannot be
addressed by the judicial system until the defendant has been
tried, convicted, sentenced, and then appeals his or her
conviction. In view of the often crowded trial court
calendars, the heavy workloads in most district attorneys'
offices, and the time and cost associated with the process of
criminal prosecution, is it reasonable to eliminate many
time-consuming steps in the process by allowing a court a role
at the front end of the diversion process? If the court can
correct a prosecutor's error of judgment in applying the
eligibility factors at the beginning of the process, the time
and cost associated with the arraignment, pre-trial motions,
preliminary hearing, jury selection and jury trial, verdict
deliberations, and sentencing can be eliminated, freeing these
resources for the prosecution of more serious offenders.
Penal Code Section 1000 makes clear that its legislative purpose
is rehabilitative. As one court stated, the purpose is "to
identify the incidental and inexperienced drug user who would
likely respond positively to prompt exposure to education and
counseling programs and who should be diverted from the normal
criminal process." [People v. Superior Court (On Tai Ho),
supra, 11 Cal.3d at pp. 61-62.] "In determining a defendant's
eligibility for diversion, the court must evaluate conduct to
determine whether the defendant is an experimental or
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tentative user who is amenable to treatment and
rehabilitation. Just as a defendant is more severely punished
for bad conduct under Penal Code Section 667, a defendant
under Penal Code Section 1000 benefits from what is basically
good conduct, i.e., the lack of prior violent or drug-related
criminal behavior." (Id.)
5)Arguments in Support : According to the California Attorneys
for Criminal Justice (the sponsor of this bill), "As currently
drafted, Penal Code section 1000 vests the prosecuting agency
full authority to determine eligibility based upon statutory
requirements. If the prosecutor mistakenly denies eligibility
the presiding judge is prohibited from remedying the error.
As a result, many qualified individuals are denied referral to
needed drug treatment programs.
"There is only one option, under current law, for an individual
who was erroneously denied the opportunity to attend drug
treatment programs: plead guilty, receive a criminal sentence,
and then file a formal appeal with the California Court of
Appeal. This process is costly to the individual and the
State of California. This expense is excessive when these
errors could simply and efficiently be addressed by the judge
hearing the case."
6)Arguments in Opposition : According to the California District
Attorneys Association , "Pursuant to the existing statute, the
prosecuting attorney reviews the defendant's file to make a
determination of eligibility. The sole remedy if a defendant
is found ineligible is post-conviction appeal. The
prosecutor's screening 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,
especially because this determination is one of eligibility
and not amenability."
7)Related Legislation : AB 358 (Ammiano) would have authorized 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
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violations where the defendant has no prior felony convictions
within the prior five years. AB 358 was vetoed for lack of
evidence showing that judicial review of the prosecutor's
decision would be an effective use of court resources or would
improve the existing process for determining eligibility for a
deferred entry of judgment program.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice (Sponsor)
Drug Policy Alliance
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Opposition
California District Attorneys Association
California Narcotic Officers' Association
Analysis Prepared by : Meghan Masera / PUB. S. / (916)
319-3744