BILL ANALYSIS
SENATE RULES COMMITTEE SB 1369
Office of Senate Floor Analyses
1020 N Street, Suite 524
(916) 445-6614 Fax: (916) 327-4478
.
UNFINISHED BUSINESS
.
Bill No: SB 1369
Author: Kopp (I)
Amended: 8/15/96
Vote: 21
.
SENATE CRIMINAL PROCEDURE COMMITTEE: 4-1, 4/23/96
AYES: Kopp, Polanco, Boatwright, Marks
NOES: Watson
NOT VOTING: Johnson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SENATE FLOOR: 28-0, 5/16/96
AYES: Ayala, Beverly, Boatwright, Costa, Craven, Dills,
Hayden, Hughes, Johannessen, Johnson, Johnston, Kelley,
Kopp, Leonard, Leslie, Lockyer, Maddy, Marks, Mello,
Monteith, Mountjoy, O'Connell, Peace, Petris, Rogers,
Solis, Thompson, Wright
NOT VOTING: Alquist, Calderon, Greene, Haynes, Hurtt,
Killea, Lewis, Polanco, Rosenthal, Russell, Sher, Watson
ASSEMBLY FLOOR: 59-9, 8/21/96 - See last page for vote
.
SUBJECT: Deferred entry of judgment
SOURCE: California District Attorneys Association
.
DIGEST: This bill provides that instead of diversion,
?1
CONTINUED
SB 1369
Page
2
deferred entry of judgment be available to a person who
pleads guilty to a drug offense and agrees to attend drug
counseling.
Assembly Amendments (1) authorize the establishment of a
preguilty plea program, (2) make numerous
technical/clarifying changes, and (3) add double-joining
language.
ANALYSIS: Under existing law, diversion is available to
qualified drug offenders. Only persons who are charged
with specifically enumerated drug offenses may be
considered for diversion. (Penal Code section 1000 et.
seq.) If a person seeks diversion and appears eligible for
diversion, the District Attorney states the eligibility for
the record and the person is referred by the court to a
county approved drug counseling program, following
recommendations by the probation department.
Under existing law, diversion can occur any time before a
trial begins. Criminal cases are diverted not less than
six months nor more than two years. The charges are
dismissed if the person has performed diversion
successfully. If a defendant fails to meet the terms of
their diversion, they will be ordered to stand trial for
the original alleged offense.
This bill would change the diversion program for drug
offenders to a deferred entry of judgment option. Under
deferred entry of judgment, a defendant would be required
to waive their constitutional right to trial and plead
guilty in order to be referred to a drug counseling
program. If the program is successfully completed, the
court shall dismiss the charges against the defendant. The
charges cannot be dropped until at least 18 months but no
later than 3 years from the date of the defendant's
referral to drug counseling. If the defendant fails to
complete the program, judgment will be entered and a
sentencing hearing scheduled.
The purpose of this bill is to eliminate diversion for drug
offenders and create a deferred entry of judgment option.
?2
CONTINUED
SB 1369
Page
3
The bill also would authorize the presiding judge of the
superior or municipal court, or his or her designee,
together with the district attorney and public defender, to
agree in writing to establish and conduct a preguilty plea
drug court program, wherein criminal proceedings are
suspended without a plea of guilty for designated
defendants and charges are dismissed upon satisfactory
performance in the program.
This bill is double-joined with AB 2710 (House).
Diversion
Under existing law, persons charged with certain drug
offenses may be eligible for diversion. The district
attorney, the court and the probation department all play a
part in determining whether a defendant should be eligible
for diversion. Some of the factors considered are that the
crime did not involve violence, that the defendant has
never had probation or parole revoked without completion,
that the defendant has not been diverted in the last five
years, and that there are no prior felony convictions
within the last five years. The probation department
evaluates the defendant's eligibility and educational needs
and makes recommendations to the court which acts on those
recommendations and refer the defendant to the necessary
programs. The only right a person gives up when choosing
diversion is their right to a speedy trial. Thus, a person
who believes they are innocent, may choose diversion,
knowing that their constitutional right to trial remains
intact if for some reason they fail to complete diversion.
The defendant's incentive to complete the diversion program
is to avoid a trial and possible conviction on the charges.
Also the defendant knows that failure to complete a
diversion program will make them ineligible for any future
diversion.
Upon successful completion of a diversion program, the
charges against the defendant are dropped by the district
attorney.
?3
CONTINUED
SB 1369
Page
4
Deferred Entry of Judgment
By changing the diversion program to one of deferred entry
of judgment, this bill makes the following changes.
Waiver of right to trial and time for pronouncement of
judgment and guilty plea.
In order for a defendant to be eligible for deferred entry
of judgment under this bill they must waive their
constitutional right to a jury trial and time for
pronouncement of judgment and plead guilty. In the current
diversion program, these rights are not waived. Under this
bill, the defendant is given the choice that if he/she
pleads guilty, it will lead to counseling, no jail, and
eventual possible exoneration. If he/she pleads not guilty
and is convicted there is a likelihood of jail, fines and a
criminal record.
Generally, persons accused of crimes may plead nolo
contendre, or no contest, in lieu of pleading guilty. This
plea has the effect of accepting the consequences of the
charges, without actually admitting guilt. A plea of nolo,
once it has been accepted by the court, and judgment has
been entered, is considered a conviction. Under this
bill, to be able to have the deferred entry of judgment,
the defendant would have to plead guilty and would not be
able to plead nolo contendre.
Prior legislation:
SB 50X (Kopp) passed the Senate 29-2 on 8/11/94; noes were
Alquist and Watson (held in Assembly Public Safety
Committee). SB 33X (Kopp) passed the Senate 30-1 on
6/9/94; no was Watson (failed in Assembly Public Safety
Committee).
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT: (Verified 8/23/96)
California District Attorneys Association (source)
?4
CONTINUED
SB 1369
Page
5
California Peace Officers Association
California Police Chiefs Association
San Bernardino County Sheriff
Attorney General
OPPOSITION: (Verified 8/23/96)
American Civil Liberties Union
California Attorneys for Criminal Justice
ARGUMENTS IN SUPPORT: The San Bernardino County Sheriff
states that "the requirement to have an individual plead
guilty prior to their case being diverted is worthy of our
support. Individuals who face drug charges may have the
best intentions of completing their rehabilitation program.
If they know that their failure to complete the program
will only result in them having to stand trial they may opt
to take a chance at a jury verdict versus the much needed
treatment program. By requiring an individual to plead
guilty prior to entering the program there is a strong
incentive for them to complete the program, knowing that
if they fail to complete the program that county jail or to
prison awaits them.
"It is important to note that individuals who come under
this section were not personally motivated until such time
as the criminal justice system became involved."
ARGUMENTS IN OPPOSITION: CACJ believes that deferred
entry of judgment as proposed by this bill is essentially
the same as requiring drug programs as a condition of
probation. Thus "there is little incentive to agree to the
program, since the terms of probation might well be similar
to what the client would get through participation in
diversion." This may lead to more unnecessary trials.
ACLU notes that deferred entry of judgment frustrates the
intent of diversion which specifically was designed to
solve minor drug offenses outside the system by treatment
programs.
ASSEMBLY FLOOR:
AYES: Ackerman, Aguiar, Alby, Alpert, Baca, Baldwin,
?5
CONTINUED
SB 1369
Page
6
Battin, Baugh, Boland, Bordonaro, Bowler, Brewer, Brulte,
Caldera, Cannella, Conroy, Cortese, Cunneen, Figueroa,
Firestone, Frusetta, Gallegos, Goldsmith, Granlund,
Hannigan, Harvey, Hauser, Hawkins, Hoge, House,
Kaloogian, Knight, Knowles, Knox, Kuykendall, Machado,
Margett, Martinez, Mazzoni, McPherson, Morrissey, Morrow,
K. Murray, W. Murray, Olberg, Poochigian, Rainey,
Richter, Rogan, Setencich, Speier, Sweeney, Takasugi,
Thompson, Tucker, Vasconcellos, Weggeland, Woods, Pringle
NOES: Archie-Hudson, Bowen, Burton, Campbell, Isenberg,
Kuehl, Lee, Migden, Villaraigosa
NOT VOTING: Bates, Brown, Bustamante, Davis, Ducheny,
Escutia, Friedman, Katz, Miller, Napolitano
RJG:jk 8/23/96 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
?6
CONTINUED