People v. Duncan, No. E007237

• Court: California Court of Appeals
• Writing for the Court: HOLLENHORST
• Citation: 265 Cal.Rptr. 612,216 Cal.App.3d 1621
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Deena Teresa DUNCAN, Defendant and Appellant.
• Docket Number: No. E007237
• Decision Date: 09 January 1990

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265 Cal.Rptr. 612 216 Cal.App.3d 1621 PEOPLE of the State of California, Plaintiff and Respondent,
v.
Deena Teresa DUNCAN, Defendant and Appellant. No. E007237. Court of Appeal, Fourth District, Division 2, California. Jan. 9, 1990.
Review Denied April 19, 1990.

[216 Cal.App.3d 1623] Joseph E. Taylor, Public Defender, and David J. Macher, Deputy Public Defender, for defendant and appellant.

Grover C. Trask II, Dist. Atty., and Guy B. Pittman, Deputy Dist. Atty., for plaintiff and respondent.

OPINION

HOLLENHORST, Acting Presiding Justice.

FACTUAL AND PROCEDURAL HISTORY

This case involves the question of whether defendant was eligible for pre-trial diversion on a first-time drug offense. The facts of the case are not in dispute. Police arrested defendant on suspicion of driving

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a vehicle while [216 Cal.App.3d 1624] under the influence of a controlled substance and alcohol. Defendant submitted to a blood test which revealed that she had a blood level of .14 percent alcohol and 141 mg. cocaine. The People charged her with violation of 1 count each of being under the influence of a controlled substance (Health & Saf.Code, § 11550) and driving while under the combined influence of alcohol and a controlled substance (Veh.Code, § 23152, subd. (a)).

Defendant made a motion for pre-trial diversion for drug treatment and education on the Health and Safety Code violation pursuant to Penal Code section 1000. The trial court denied this request on the ground that defendant was ineligible for diversion under Penal Code section 1000, subdivision (a)(3) because there was evidence that defendant had committed another drug related offense--the violation of Vehicle Code section 23152, subdivision (a)--which was not subject to diversion. Defendant then submitted her case for trial on the police report and the trial court found her guilty of violating Health and Safety Code section 11550 and Vehicle Code section 23152, subdivision (a). ¹

DISCUSSION

Defendant's sole contention on appeal is that the court erred in denying her motion for diversion. As we explain below, we disagree and affirm.

The Legislature enacted Penal Code section 1000 in 1972. The purpose of the statute is two-fold. "First, diversion permits the courts to identify the experimental or tentative user before he [or she] becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction. Second, reliance on this quick and inexpensive method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions and thus enables the courts to devote their limited time and resources to cases requiring full criminal processing." (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61-62, 113 Cal.Rptr. 21, 520 P.2d 405.)

When the Legislature originally enacted the statute it authorized pre-trial diversion upon an accusatory pleading for violation of any of six enumerated[216 Cal.App.3d 1625] Health and Safety Code sections involving possession of illegal drugs, possession of drug paraphernalia, being under the influence of an illegal drug, or presence where others are using such drugs. Later amendments also authorized diversion upon accusatory pleadings for cultivating marijuana for personal use, securing drugs for personal use through a fictitious prescription, and being under the influence of illegal drugs in a public place. Such diversion is authorized only if the defendant meets six limiting criteria including subdivision (a)(3) of section 1000 which requires that "[t]here is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision." (Emphasis added.)

Defendant maintains that violation of Vehicle Code section 23152, subdivision (a) is not a "violation relating to narcotics or restricted dangerous drugs" within the meaning of Penal Code section 1000, subdivision (a)(3). Relying on three California Supreme Court Cases--People v. Superior Court (On Tai Ho), supra, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405, Sledge v. Superior Court (1974) 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412, and Morse v. Municipal Court (1974) 13 Cal.3d 149, 118 Cal.Rptr. 14, 529 P.2d 46--she argues that the high court has mandated that we must interpret section 1000 liberally to fulfill the intent of the Legislature and that legislators

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meant for section 1000, subdivision (a)(3) to apply only to other drug related offenses which involved drug dealing.

People v. Superior Court (On Tai Ho), supra, 11 Cal.3d at page 64, 113 Cal.Rptr. 21, 520 P.2d 405, deals not with the interpretation of Penal Code section 1000, subdivision (a)(3) but with the constitutionality of a provision of the original statute which gave the prosecutor a veto over the court's judicial power to exercise its discretion to order diversion. On Tai Ho does not discuss liberal interpretation of section 1000 and it acknowledges at the outset of the opinion that an arrestee is eligible for diversion only for the (then) six enumerated offenses in the statute. (Id., at p. 62, fn. 2, 113 Cal.Rptr. 21, 520 P.2d 405.)

Sledge v. Superior Court, supra, 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412, a companion case to On Tai Ho, also does not construe Penal Code section 1000, subdivision (a)(3). Instead, Sledge decides whether the prosecutor's authority under section 1000 to make the preliminary determination of eligibility for diversion violates the constitutional requirement for...