Monday, June 18, 2001
Proposition 36 Doesn’t Repeal Deferred Judgment Program—Lockyer
By a MetNews Staff Writer
Proposition 36, the drug sentencing initiative approved by voters last November, does not repeal the deferred entry of judgment program authorized by current law, Attorney General Bill Lockyer has opined.
In an opinion made public Friday, the attorney general said there was nothing in the text of Proposition 36 that would support repeal of deferred judgment. Nor, Lockyer said, is there any justification for treating the existing law as repealed by implication.
Proposition 36 becomes operative July 1.
It would require that most offenders charged with drug possession offenses be placed on probation and ordered into drug treatment. Exceptions would be made for some offenders with past convictions for violent crimes, or who used firearms while in possession of drugs, or who have failed to complete treatment programs in the past.
The deferred judgment program is the successor to what was known as drug diversion.
Under the current law, certain drug offenders may enter a conditional plea of guilty, then enter a program of treatment and education. Upon successful completion of the program, the plea is set aside and the charges are dismissed.
The two laws are similar, but there are significant distinctions indicating that Proposition 36 was not intended to supersede deferred judgment, Lockyer said in the opinion requested by Orange County District Attorney Tony Rackacukas.
For one thing, Lockyer said, Proposition 36 applies to any convicted defendant, while the current law requires entry of the conditional guilty plea.
Also, there are some offenses for which a defendant will qualify under one law but not the other; and there are some defendants who will be excluded from one program but not the other, Lockyer noted.
The deferred judgment statute, for example, specifically excludes defendants who are simultaneously charged with a crime of violence, but unlike Proposition 36, there is no explicit exclusion for those who used firearms during the commission of a qualifying drug offense.
“The two statutory schemes may have concurrent operation effective July 1, 2001,” Lockyer concluded.
The opinion, No. 01-207, was prepared for Lockyer by Deputy Attorney General Jonathan R. Davis.
Copyright 2001, Metropolitan News Company