Bill Text: CA AB358 | 2009-2010 | Regular Session | Enrolled
Bill Title: Criminal procedure: narcotics and drug abuse cases.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2010-01-14 - Consideration of Governor's veto stricken from file. [AB358 Detail]
Download: California-2009-AB358-Enrolled.html
BILL NUMBER: AB 358 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 24, 2009
PASSED THE ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY MAY 28, 2009
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 23, 2009
An act to amend Sections 1000 and 1000.1 of the Penal Code,
relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 358, Ammiano. Criminal procedure: narcotics and drug abuse
cases.
Existing law provides that entry of judgment may be deferred with
respect to defendants who are charged with certain enumerated crimes
and meet certain criteria, including no prior convictions for any
offense involving controlled substances and no prior felony
convictions within the prior 5 years, as specified. Existing law
requires the prosecuting attorney to review his or her file to
determine whether those conditions apply to the defendant and, if the
defendant is found ineligible for deferred entry of judgment, to
file with a court a declaration stating the grounds upon which the
determination is based.
This bill would authorize the court, at the defendant's request,
to review the prosecuting attorney's determination of ineligibility
and would further authorize the court to make the final
determination, as specified.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1000 of the Penal Code is amended to read:
1000. (a) This chapter shall apply whenever a case is before any
court upon an accusatory pleading for a violation of Section 11350,
11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code,
or subdivision (b) of Section 23222 of the Vehicle Code, or Section
11358 of the Health and Safety Code if the marijuana planted,
cultivated, harvested, dried, or processed is for personal use, or
Section 11368 of the Health and Safety Code if the narcotic drug was
secured by a fictitious prescription and is for the personal use of
the defendant and was not sold or furnished to another, or
subdivision (d) of Section 653f if the solicitation was for acts
directed to personal use only, or Section 381 or subdivision (f) of
Section 647 of the Penal Code, if for being under the influence of a
controlled substance, or Section 4060 of the Business and Professions
Code, and it appears to the prosecuting attorney that, except as
provided in subdivision (b) of Section 11357 of the Health and Safety
Code, 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.
(b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to (6), inclusive, of
subdivision (a) apply to the defendant. 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 or her
attorney. This procedure is intended to allow the court to set the
hearing for deferred entry of judgment at the arraignment. 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. At the request of the
defendant, the court may review the prosecuting attorney's
determination of ineligibility and is authorized to make the final
determination of eligibility based upon the criteria as specified in
this section. The sole remedy of a defendant who is found ineligible
for deferred entry of judgment is a postconviction appeal.
(c) All referrals for deferred entry of judgment granted by the
court pursuant to this chapter shall be made only to programs that
have been certified by the county drug program administrator pursuant
to Chapter 1.5 (commencing with Section 1211) of Title 8, or to
programs that provide services at no cost to the participant and have
been deemed by the court and the county drug program administrator
to be credible and effective. The defendant may request to be
referred to a program in any county, as long as that program meets
the criteria set forth in this subdivision.
(d) Deferred entry of judgment for a violation of Section 11368 of
the Health and Safety Code shall not prohibit any administrative
agency from taking disciplinary action against a licensee or from
denying a license. Nothing in this subdivision shall be construed to
expand or restrict the provisions of Section 1000.4.
(e) Any defendant who is participating in a program referred to in
this section may be required to undergo analysis of his or her urine
for the purpose of testing for the presence of any drug as part of
the program. However, urine analysis results shall not be admissible
as a basis for any new criminal prosecution or proceeding.
SEC. 2. Section 1000.1 of the Penal Code is amended to read:
1000.1. (a) If the prosecuting attorney or the court determines
that this chapter may apply to the defendant, the prosecuting
attorney shall advise the defendant and his or her attorney in
writing of that determination. This notification shall include the
following:
(1) A full description of the procedures for deferred entry of
judgment.
(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
deferred entry of judgment with respect to any crime specified in
subdivision (a) of Section 1000 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, as specified in subdivision (c) of Section
1000, 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, 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 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 or her arrest and deferred entry of judgment following
successful completion of the program.
(b) If the defendant consents and waives his or 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 or charges 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.
(c) 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 pursuant to subdivision
(b), 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 of judgment, shall be admissible in
any action or proceeding, including a sentencing hearing.
(d) A defendant's plea of guilty pursuant to this chapter shall
not constitute a conviction for any purpose unless a judgment of
guilty is entered pursuant to Section 1000.3.
