BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1706 (Ammiano)
As Introduced February 1, 2010
Hearing date: June 29, 2010
Penal Code
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DEFERRED ENTRY OF JUDGMENT IN DRUG CASES:
REVIEW OF PROSECUTOR'S DETERMINATION OF DEFENDANT'S
INELIGIBILITY
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation: AB 358 (Ammiano) - 09 Vetoed
SB 1369 (Kopp) - Ch.1132, Stats. 1996
Support: Drug Policy Alliance; Legal Services for Prisoners with
Children; Taxpayers for Improving Public Safety; California
Public Defenders Association
Opposition:
California District Attorneys Association; California
Narcotic Officers
Association
Assembly Floor Vote: Ayes 44 - Noes 28
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KEY ISSUE
IN A DRUG POSSESSION CASE, SHOULD A DEFENDANT WHO SEEKS DEFERRED
ENTRY OF JUDGMENT AND PLACEMENT IN A DRUG TREATMENT PROGRAM BE
ALLOWED TO OBTAIN TRIALCOURT REVIEW OF THE PROSECUTOR'S DECISION
THAT THE DEFENDANT IS NOT ELIGIBLE FOR DEFERRED ENTRY OF
JUDGMENT?
PURPOSE
The purpose of this bill is to allow a defendant who seeks
deferred entry of judgment in a drug possession matter to obtain
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.
Existing law provides that entry of judgment may be deferred
with respect to defendants charged with specified drug
possession crimes 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 appears to the
prosecuting attorney that, except for the personal use
cultivation of marijuana, all of the following apply to the
defendant:
The defendant has no conviction for any offense
involving controlled substances prior to the alleged
commission of the charged offense.
The offense charged did not involve a crime of violence
or threatened violence.
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.
The defendant's record does not indicate that probation
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or parole has ever been revoked without thereafter being
completed.
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.
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 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
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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 provides that at the request of the defendant, the
court may review the prosecuting attorney's determination that a
defendant is ineligible for deferred entry of judgment, and
authorizes the court to make the final determination as to
eligibility.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
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Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
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overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Penal Code Section 1000 et seq. establishes an intense
drug treatment program for a narrow category of first
time drug offenders. The goal of the 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 the 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
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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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. (Pen. Code 1000,
subd. (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
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.
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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. No Review is Available in the Trial Court of the Prosecutor's
Determination that a Defendant is Ineligible for Deferred
Entry of Judgment
California appellate courts have consistently held that a
defendant may not challenge in the trial court the prosecutor's
determination that the defendant is not eligible for deferred
entry of judgment. A defendant's sole remedy in such a case is
to appeal from the judgment. Similar rules controlled the
former system of diversion. (People v. Wright (2002) 99
Cal.App.4th 201.)
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Defendants have argued that granting the prosecutor sole
authority to determine a defendant's eligibility for deferred
entry violates the separation of powers doctrine. In rejecting
that argument, reviewing courts have held that the prosecutor
does not resolve factual conflicts - a judicial function - but
simply determines if the case file includes some evidence that
the defendant's conduct involved violation of another drug crime
that is covered by the deferred entry law. (People v. Bracket
(1994) 25 488, 499-501.)
The appellate courts can overrule the prosecutor's decision that
a defendant is ineligible for deferred entry or diversion.
However, the negative determination would likely be upheld
because of the deferential substantial evidence standard of
review that applies to such decisions. (People v. Hayes (1985)
163 Cal.App.3d 371, 375.) Arguably, in cases where the
appellate court found the question to be very close, it is
likely that a trial court could have overruled the prosecutor's
decision. (People v. McAlister (1990) 225 Cal.App.3d 941, 945;
Butler v. Superior Court (1998) 63 Cal. App. 4th 64, 70, con.
op.)
As noted by the sponsor, challenging a deferred entry denial
through appeal is a complex and lengthy process. Where a
defendant is denied deferred entry of judgment, he or she can
demand a jury trial. If the defendant is convicted at trial, he
or she may file an appeal. A new lawyer for the appeal will be
appointed for an indigent defendant. The appeal would consider
numerous issues other than the deferred entry issue. A
defendant who pleads guilty has a limited right to appeal, but
he or she may challenge the deferred entry determination, any
adverse ruling on a motion to suppress evidence and the sentence
imposed. If the appellate court rules for the defendant, he or
she would be returned to the trial court for the deferred entry
program - essentially taking the case full circle.
3. Argument in Support
The California Attorneys for Criminal Justice argue in support:
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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 As a result, many
qualified individuals are denied 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."
4. Argument in Opposition
The California District Attorneys Association argues in
opposition:
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.
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5. Veto Message for Equivalent Bill - AB 358 (Ammiano) in 2009
The author of this bill was the author of AB 358 (Ammiano) in
2009. This bill - AB 1706 - is essentially the same bill as AB
358. AB 358 was vetoed. The Governor's veto message was the
following:
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.
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