People v. Orozco
| Decision Date | 25 September 2012 |
| Docket Number | No. G045124.,G045124. |
| Citation | 2012 Daily Journal D.A.R. 13438,146 Cal.Rptr.3d 916,12 Cal. Daily Op. Serv. 11108,209 Cal.App.4th 726 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. James OROZCO, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 386 et seq.
David McNeil Morse, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant James Orozco pleaded guilty to possessing cocaine and driving under the influence of alcohol. The court sentenced him to 60 days in jail and three years of probation for driving under the influence of alcohol, but granted him deferred entry of judgment under Penal Code section 1000 et seq. for possessing cocaine.1 To satisfy the deferred entry of judgment requirements, defendant enrolled in, but was eventually terminated from, a section 1000 drug treatment program. He moved to be reinstated in the program. The court (a different judge) denied defendant's motion on two alternative grounds: (1) defendant's drunk driving violation rendered him ineligible under section 1000, subdivision (a)(3) ( section 1000(a)(3)) for deferred entry of judgment on the cocaine possession charge; and (2) defendant had performed unsatisfactorily in the drug treatment program by failing too long to enroll and participate in a timely way.
We hold the court misinterpreted section 1000(a)(3). That subdivision disqualifies a defendant for deferred entry of judgment if he or she has violated (in addition to the crime eligible for deferred entry of judgment) an ineligible offense related to “narcotics or restricted dangerous drugs....” As used in section 1000(a)(3), alcohol is neither a “narcotic” nor a “restricted dangerous drug....” Nonetheless, we affirm the judgment because the court properly terminated defendant's deferred entry of judgment under section 1000.3 for unsatisfactory performance in the assigned drug treatment program. Finally, because defendant was eligible for deferred entry of judgment in the first instance, we do not address his contention that he must be given an opportunity to withdraw his guilty plea.
On August 20, 2010, before Judge Theodore R. Howard, defendant pleaded guilty to cocaine possession (Health & Saf.Code, § 11350, subd. (a)), driving under the influence of alcohol with a blood alcohol level of at least .08 percent (Veh.Code, § 23152, subds. (a) & (b)), and driving with a suspended license (Veh.Code, § 14601.1, subd. (a)).2 In exchange, he was sentenced, as to the cocaine possession charge, to deferred entry of judgment pursuant to section 1000, and, as to the Vehicle Code counts, to three years of informal probation on condition he serve 60 days in countyjail. The court ordered defendant to submit proof of enrollment in a section 1000 drug treatment program by September 20, 2010,3 and to submit proof of completion of the program on March 21, 2011. Assuming defendant completed these two requirements, a hearing would be held in February 2012 for the dismissal of the cocaine possession charge.
The court stayed defendant's jail sentence for eight weeks, until October 8 (assuming he was not accepted and enrolled in home confinement), to give him time to enroll in a drug treatment program.
On September 20, the court granted defendant an extension of time to submit proof of enrollment in a drug treatment program.
On October 4, Judge Erick L. Larsh granted defendant another extension of time to enroll in a drug treatment program and to complete the requirements for applying for home confinement. The court specified a deadline of November 5, and stressed this was defendant's last chance:
On November 5, defendant submitted to the court his proof of enrollment in a drug treatment program. The court apparently instructed him to have “his [home] confinement bracelet put on that day,” 4 but defendant instead turned himself in to serve time in actual custody for his Vehicle Code offenses.
Over four months later, at a March 21, 2011 hearing, Judge Larsh stated defendant had been terminated from the drug treatment program for absences on November 3, 10, and 17. The termination report showed defendant had completed a one-hour intake, a fee assessment, one treatment plan, one education hour, and one group counseling. Because defendant advised the court he could not afford counsel, the court appointed the public defender to represent him.
Defense counsel explained to the court the circumstances of defendant's termination from the drug treatment program: Due to his incarceration beginning on November 5, he was absent from the program for three weeks and was therefore terminated from it. After defendant's release from jail, he lost his job, became homeless, and had no money to pay for a program. Defendant was now employed, had a place to stay, and could afford to pay for a program. He therefore asked the court to reinstate him.
Judge Larsh—noting that a different judge had taken defendant's guilty plea—suggested defendant might have been ineligible for deferred entry of judgment under People v. Duncan (1990) 216 Cal.App.3d 1621, 265 Cal.Rptr. 612( Duncan ). The court continued sentencing to April 7, 2011, so that defense counsel could research the issue.
On April 7, 2011, the court denied defendant's motion to reinstate him into a program because: (1) the motion was untimely, and (2) the court believed he was ineligible for deferred entry of judgment. The court gave defendant two sentencing options: (1) felony probation and 60 days in jail, with credit for time served; or (2) felony probation and 90 days in jail, with the jail time stayed on condition he complete a Proposition 36 diversion program. Defendant chose the first option. The court sentenced defendant to 60 days in jail (with credit for 60 days) and three years of supervised probation.
Defendant disputes the court's ruling he was ineligible for deferred entry of judgment, arguing “there was no evidence of any controlled substance in his blood.”
Deferred entry of judgment (DEJ) under section 1000 et seq., serves the twofold purpose of rehabilitating an “ ‘experimental or tentative user ... without the lasting stigma of a criminal conviction’ ” and “ ‘reduc[ing] the clogging of the criminal justice system by drug abuse prosecutions....' ” ( People v. Barrajas (1998) 62 Cal.App.4th 926, 930, 73 Cal.Rptr.2d 123.) Under the statutory scheme, defendants charged with certain offenses involving controlled substances (the divertible offenses) may consent to DEJ and thereby be diverted from conventional criminal prosecution. (§§ 1000, subd. (a), 1000.2; In re Varnell (2003) 30 Cal.4th 1132, 1138, 135 Cal.Rptr.2d 619, 70 P.3d 1037.) To be granted DEJ, a defendant must: (1) plead guilty to the divertible offense or offenses (§ 1000.1, subd. (b)); (2) meet all six eligibility requirements set forth in section 1000, subdivision (a); and (3) be deemed by the court to be a person who would benefit from education, treatment, rehabilitation, and DEJ (§§ 1000.1, subd. (b), 1000.2). If a defendant (who has been granted DEJ) completes an assigned drug treatment program and otherwise performs satisfactorily during a period of 18 months to three years (§§ 1000, subd. (c), 1000.3, 1000.4, 1001.1, subd. (a)(3)), the charges for the divertible offenses are dismissed (§ 1000.3).
Here, defendant was charged with unlawful possession of cocaine, a divertible offense. (§ 1000, subd. (a); Health & Saf.Code, §§ 11054, subd. (f)(1), 11055, subd. (b)(6), 11350, subd. (a).) Defendant pleaded guilty to the charge and consented to DEJ.
But the court ruled defendant was ineligible for DEJ under section 1000(a)(3). Under section 1000(a)(3), a defendant is ineligible for DEJ if he or she has violated a nondivertible offense “relating to narcotics or restricted dangerous drugs.” (Italics added.) Because defendant pleaded guilty to driving under the influence of alcohol, a nondivertible offense, the court concluded he was ineligible for DEJ under section 1000(a)(3). Alcohol is not a narcotic. (Health & Saf.Code, § 11019 [definition of “narcotic drug”].) Therefore, the court impliedly found alcohol is a “restricted dangerous drug” within the meaning of section 1000 (a)(3). We have found no current statutory definition, nor have the parties pointed us to one, for the term “restricted dangerous drugs.”
Thus, at issue in this case is the scope and meaning of the term “restricted dangerous drugs” as used in section 1000(a)(3). We examine that question of law de novo. ( People v. Salcido (2008) 166 Cal.App.4th 1303, 1311, 83 Cal.Rptr.3d 561.) “ ‘As in any case involving statutory interpretation, our fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose.’ ” ( People v. Cole (2006) 38 Cal.4th 964, 974, 44 Cal.Rptr.3d 261, 135 P.3d 669.) ( Id. at p. 975, 44 Cal.Rptr.3d 261, 135 P.3d 669.) In addition, “ ‘the “wider historical circumstances” of the enactment may be considered.’ ” ( People v. Moore (2004) 118 Cal.App.4th 74, 78, 12 Cal.Rptr.3d 649.)
We turn to the extrinsic aids of section 1000(a)(3)'s legislative history and its wider historical circumstances, which together reveal that the term “restricted...
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