BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1706|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 1706
Author: Ammiano (D)
Amended: As introduced
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-1, 6/29/10
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Huff
NO VOTE RECORDED: Cogdill
ASSEMBLY FLOOR : 44-28, 6/1/10 - See last page for vote
SUBJECT : Deferred entry of judgment in drug cases
SOURCE : California Attorneys for Criminal Justice
DIGEST : This bill allows a defendant who seeks deferred
entry of judgment in a drug possession matter to obtain
review by the trial court of the prosecutors 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.
ANALYSIS : 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
CONTINUED
AB 1706
Page
2
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probation or parole has ever been revoked without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
AB 1706
Page
3
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 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.
Prior Legislation
AB 358 (Ammiano) which passed the Senate on 8/24/10
(21-18), and was vetoed.
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:
AB 1706
Page
4
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/1/10)
California Attorneys for Criminal Justice (source)
Drug Policy Alliance
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
California Public Defenders Association
OPPOSITION : (Verified 7/1/10)
California District Attorneys Association
California Narcotic Officers Association
ARGUMENTS IN SUPPORT : The California Attorneys for
Criminal Justice state:
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
AB 1706
Page
5
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."
ARGUMENTS IN OPPOSITION : The California District
Attorneys Association state:
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.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huber, Huffman, Jones, Bonnie Lowenthal,
Ma, Mendoza, Monning, Norby, V. Manuel Perez, Ruskin,
Salas, Saldana, Skinner, Swanson, Torlakson, Torres,
Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Blakeslee, Conway,
Cook, DeVore, Emmerson, Fletcher, Fuller, Gaines,
Garrick, Gilmore, Hagman, Harkey, Jeffries, Knight, Lieu,
Logue, Miller, Nestande, Niello, Nielsen, Portantino,
Silva, Smyth, Tran, Villines
NO VOTE RECORDED: Tom Berryhill, Caballero, Fuentes, Nava,
AB 1706
Page
6
Solorio, Audra Strickland, Torrico
RJG:nl 7/1/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****