BILL ANALYSIS
AB 1706
Page 1
ASSEMBLY THIRD READING
AB 1706 (Ammiano)
As Introduced February 1, 2010
Majority vote
PUBLIC SAFETY 4-2
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|Ayes:|Ammiano, Furutani, Hill, | | |
| |Skinner | | |
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|-----+--------------------------+-----+--------------------------|
|Nays:|Hagman, Gilmore | | |
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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
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.
2)States that entry of judgment may be deferred if it appears to
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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or parole has ever been revoked without thereafter being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)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.
4)States that if the defendant is found ineligible for deferred
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
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is found ineligible for deferred entry of judgment is a
post-conviction appeal.
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
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,
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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.
"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."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Meghan Masera / PUB. S. / (916)
319-3744
FN: 0003762