Diversion PC 1000
Category > Diversion PC 1000
Updated 6/1/2024Failure to raise new amendments to mental health diversion law prior to sentencing did not result in forfeiture, and case was remanded to allow consideration of the new amendments.The trial court did not err in denying defendant’s claim for pretrial diversion after finding defendant’s schizophrenia did not contribute to the offense. However, remand was required to allow the trial court to consider recent amendments to the mental health diversion statute. The issue was not forfeited due to trial counsel’s failure to raise the issue because courts generally decline to apply the forfeiture rule to a right derived from a recent, unauthorized change in the law.id: 28285
Updated 4/13/2024Mental health diversion is available for someone charged with misdemeanor drunk driving.A trial court has authority under Penal Code section 1370.01(b)(1)(A) to order treatment through mental health diversion for a mentally incompetent misdemeanor defendant charged with driving under the influence.id: 28233
Updated 3/4/2024The trial court abused its discretion by denying mental health diversion after relying on factors that were not part of the statutory criteria.The trial court abused its discretion in denying mental health diversion based on two factors – inability to remain drug free, and defendant’s unreasonable risk of danger to the public. Neither of these factors are listed in the statutory criteria described in Penal Code section 1001.36. The danger factor would have required the court to find defendant was likely to commit a super strike offense.id: 28188
Updated 2/26/2024Mental Health diversion provision applies retroactively to cases not final on appeal.Defendant was convicted of several offenses following a high-speed chase by police. His case was remanded to the trial court to evaluate his eligibility for pretrial mental health diversion under newly-enacted Penal Code section 1001.36. The new law applies retroactively to cases not final on appeal at the time of its enactment, and the record shows defendant may have met the eligibility requirements.id: 26362
Updated 2/26/2024The new provision allowing for pretrial mental health diversion applies retroactively.Defendant was convicted of the attempted murder of a police officer. However, the recently enacted statute allowing for pretrial mental health diversion (Penal Code section 1001.36) applies retroactively to cases pending on appeal, and the matter was remanded for a determination fo defendant’s eligibility.id: 26395
Updated 2/4/2024Request for mental health diversion made after conviction but before sentencing was timely.Defendant was convicted of robbery, and before sentencing filed a motion for mental diversion under Penal Code section 1001.36. The trial court erred by denying the request as untimely. The matter was remanded to allow the trial court to consider defendant’s eligibility for mental health diversion.id: 27266
Updated 2/4/2024The trial court erred in denying defendant mental health diversion given the lack of evidence of future dangerousness. Defendant was convicted of making criminal threats. Prior to trial, the defendant sought pretrial mental health diversion under Penal Code sections 1001.35 and 1001.36. The trial court erroneously denied the request finding defendant posed an unreasonable risk of danger to public safety given the expert opinions that he poses a low risk of future assault and had not previously been convicted of a violent felony.id: 27269
Updated 2/4/2024The trial court erred in denying mental health diversion for a defendant who pled guilty to stalking given the lack of evidence that he posed an unreasonable risk to public safety.Defendant pled guilty to felony stalking. He was denied mental health diversion under newly enacted Penal Code section 1001.36, which took effect right after his plea. The trial court erred in denying defendant’s diversion request where the evidence did not show he posed an unreasonable risk to public safety. The evidence showed that he terrorized a family, and that his threats were violent and specific. However, his charges were not super strike offenses, he posed a low risk to public safety in the opinion of two mental health professionals, there was no evidence that he possessed weapons, and he had been released on bond for two years without incident.id: 27306
Updated 2/4/2024The trial court erred in denying mental health diversion for a defendant who pled guilty to stalking given the lack of evidence that he posed an unreasonable risk to public safety.Defendant pled guilty to felony stalking. He was denied mental health diversion under newly enacted Penal Code section 1001.36, which took effect right after his plea. The trial court erred in denying defendant’s diversion request where the evidence did not show he posed an unreasonable risk to public safety. The evidence showed that he terrorized a family, and that his threats were violent and specific. However, his charges were not super strike offenses, he posed a low risk to public safety in the opinion of two mental health professionals, there was no evidence that he possessed weapons, and he had been released on bond for two years without incident.id: 27307
Updated 2/4/2024Pretrial mental health diversion request is timely if made before the jury’s verdict. A request for pretrial diversion under Penal Code section 1001.36 is timely only if made prior to the return of the jury’s guilty verdict.id: 27331
Updated 2/3/2024The trial court erred in denying defendant’s request for mental health diversion absent evidence of his dangerousness if treated.The trial court erred in denying defendant’s motion for mental health diversion under Penal Code section 1001.36. There was no substantial evidence that he posed an unreasonable risk to public safety, and he could be treated without fear that he would commit a super strike.id: 27667
Updated 2/1/2024The trial court erred in relying on the general objectives of sentencing in denying defendant’s request for mental health diversion.The trial court abused its discretion by relying on general objectives of sentencing and failing to consider the primary purposes of mental health diversion in denying defendant’s motion for diversion. On remand, the court should consider the goals of promoting increased diversion of individuals with mental disorders to mitigate their entry and reentry into the criminal justice system while at the same time, protecting public safety.id: 28014
Updated 1/31/2024Amended version of the mental health diversion provision applied retroactively to defendant’s case.Defendant argued the amended Penal Code section 1001.36, revising eligibility for pretrial mental health diversion applied to his case. The provision in fact applied retroactively to defendant’s nonfinal judgment. The matter was remanded with directions that the trial court consider defendant’s request for mental health diversion under the amended version of section 1001.36.id: 28068
Updated 1/31/2024Defendant serving a stipulated term was not ineligible for relief under the amended section 1170.91.Defendant filed a petition for resentencing under Penal Code section 1170.91 as he was honorably discharged from the Army in 1981 and suffered several service related disorders. The fact that he was serving a stipulated sentence did not render him ineligible for relief under that provision.id: 28073
The trial court erred in finding defendant was ineligible for military diversion as it applied felony sentencing guidelines without considering the purpose of diversion. Defendant was an active duty member of the Army Special Forces Group, who requested pretrial diversion after being charged with misdemeanor drunk driving. The trial court erred in finding he was ineligible for pretrial diversion under the military diversion statute (Penal Code section 1001.80) because the court applied the felony sentencing guidelines without apparent consideration of the rehabilitation purpose of diversion.id: 26125
The trial court prejudicially erred by failing to instruct that “transportation” means for the purpose of sale. The trial court erred when instructing on possession for sale, because after the 2014 amendment 11352, “transportation” means for the purpose of sale. The jury instruction for transportation for sale omitted an essential element of the offense and the evidence supporting the missing element was not overwhelming.id: 25366
The trial court erred by finding the drunk driving conviction rendered defendant ineligible for deferred entry of judgment under section 1000.Defendant was convicted of drunk driving and possession of cocaine. The court granted a deferred entry of judgment under Penal Code section 1000, subd.(a)(3) for the drug possession charge but he was later terminated from the drug treatment program. The court erred in finding the drunk driving conviction rendered him ineligible under section 1000. However, the court properly terminated defendant’s deferred entry of judgment under section 1000.3 for unsatisfactory performance in the treatment program.id: 22906
The trial court erred in finding the defendant’s more than two-year-old marijuana possession conviction rendered him ineligible for deferred entry of judgment under section 1000.The trial court erred in finding that defendant’s January 2006 conviction under Health and Safety Code section 11357, subd. (b) – occurring more than two years
before the current February 2008 offenses – rendered him ineligible for deferred entry of judgment under Penal Code section 1000. The record of the marijuana conviction should have been destroyed after two years and it could not have been used to determine defendant’s eligibility for diversion under section 1000.id: 21068
Court may not require an applicant for drug diversion to submit to reasonable, but warrantless, searches as a condition of diversion.The trial court may not require an applicant for drug diversion to submit to reasonable, but warrantless, searches as a condition of his or her drug diversion. However, the good faith exception to the exclusionary rule applied to the instant search and suppression was not required as defendant told the officer she was on probation and subject to a search and seizure condition, and the officer's failure to appreciate the distinction between diversion and probation did not render his conduct unreasonable.id: 10689
The three strikes law does not prohibit participation in the deferred entry of judgment program.A prior conviction within the meaning of the three strikes law does not render a defendant ineligible for participation in the deferred entry of judgment program which replaced diversion under Penal Code section 1000 in 1997. Under the terms of the program, a defendant must plead guilty to the drug charges and, upon failure to comply with the program, is sentenced under the three strikes law.id: 15185
Updated 7/12/2024The trial court did not err in considering defendant’s trial transcripts when assessing her suitability for mental health diversion.The trial court did not err by considering defendant’s trial transcripts as evidence when denying her request for mental health diversion – a determination typically made before trial. And the fact that she had committed two super strike offenses supported the finding that she would present a danger if granted diversion and treated in the community.id: 28323
Updated 4/13/2024Defendant forfeited his challenge to defense counsel’s failure to request mental health diversion by failing to obtain a certificate of probable cause.Defendant pled nolo contendere to two felonies. He argued trial counsel rendered ineffective assistance by failing to request pretrial mental health diversion under Penal Code section 1001.36. However, the claim was precluded due to defendant’s failure to obtain a certificate of probable cause.id: 28234
Updated 3/19/2024The trial court can terminate mental health diversion after criminal conduct not amounting to a “super strike.”The trial court did not err in terminating defendant’s mental health diversion under Penal Code section 1001.36. Contrary to defendant’s argument, criminal conduct supporting termination of diversion need not include a super-strike offense or the risk of such an offense.id: 28220
Updated 3/7/2024The mental health diversion law does not apply to juveniles in delinquency proceedings.The minor entered into a plea agreement where she admitted a torture allegation and was later committed to the Division of Juvenile Justice. She argued the case should be remanded so that the juvenile court can determine whether she qualified for mental health diversion under Penal Code section 1001.35 and 1001.36. However, the mental health diversion law does not apply to juveniles in delinquency proceedings. id: 26223
Updated 3/7/2024Remand for diversion consideration under section 1001.36 was unnecessary where the court otherwise found defendant’s alleged mental health disorder was not a significant factor in the assault.Defendant argued that he was entitled to a remand to allow the trial court to exercise its discretion to permit him to seek mental health diversion under newly-enacted Penal Code section 1001.36. However, remand was unnecessary because the trial court found, in another context, that defendant’s alleged mental health disorder was not a significant factor in his commission of the assault.id: 26345
Updated 3/6/2024The mental health diversion law (section 1001.36) did not apply retroactively to defendant whose case was on appeal when the provision was enacted.Defendant was convicted of arson. He argued (on appeal) for a remand so that the trial court could order pretrial diversion for treatment of his mental health condition pursuant to Penal Code section 1001.36. However, section 1001.36 does not apply retroactively.id: 26488
Updated 3/6/2024Mental health diversion statute did not apply retroactively to defendant who entered a guilty plea before the law became effective.Defendant pled guilty to battery on a nonprisoner by a prisoner. He argued the case should be remanded to determine his eligibility for mental health diversion pursuant to Penal Code section 1001.36. However, the structure, language and legislative history of section 1001.36 establish that it was not intended to apply retroactively to cases that have been adjudicated but are not yet final on appeal.id: 26667
Updated 3/4/2024The trial court properly denied mental health diversion to the defendant who set a dangerous fire and was found to be dangerous. Trial court did not abuse its discretion in denying defendant’s request for pretrial mental health diversion under Penal Code section 1001.36. Defendant, a schizophrenic who was addicted to methamphetamine set fire to dried vegetation in a populated rural area during the dry season, and the court properly found he posed an unreasonable risk of danger to public safety. id: 27797
Updated 3/4/2024Mental health diversion under section 1001.36 is not available to a defendant who has been convicted. Two years after defendant pled guilty to animal cruelty, she requested pretrial mental health diversion under Penal Code section 1001.36. The trial court properly denied her motion as untimely. id: 27484
Updated 2/26/2024Application of murder exclusion in mental health diversion statute was not ex post facto since neither the original provisions nor the amendment existed at the time of the offense. Defendant was convicted of second degree murder. He argued that under Penal Code section 1001.36, which became effective while his appeal was pending, defendant was entitled to a remand so the court could consider granting him pretrial mental health diversion. Section 1001.36 was enacted in 2018, but amended in 2019 to exclude murder convictions. Application of the amendment does not violate ex post facto or retroactivity principles since neither provision was in effect at the time defendant committed the murder.id: 26235
Updated 2/26/2024Defendant was not entitled to retroactive application of section 1001.36 where the judgment was final.Defendant sought a conditional reversal with a remand to the trial court to determine retroactively whether he qualified for pretrial diversion under Penal Code section 1001.36. However, the court had imposed judgment and suspended execution of it, and therefore it was final long before the court revoked defendant’s probation. Because the judgment was final, defendant was not entitled to retroactive relief under section 1001.36. id: 26380
Updated 2/26/2024The new mental health diversion statute does not apply retroactively to cases pending on appeal. Penal Code section 1001.36, the newly enacted pretrial mental heath diversion statute cannot be applied on appeal after a conviction and sentence. Even if the provision applied retroactively, defendant would not be eligible since he denied any history of mental illness and did not suffer from any disorder that played a role in the offenses.id: 26394
Updated 2/23/2024Mental health diversion provision applies retroactively to all cases not final on appeal at the time of its enactment. In June 2018, the Legislature enacted Penal Code section 1001.35 and 1001.36, which created a pretrial diversion program for certain defendants with mental health disorders. The provisions apply retroactively to cases in which the judgment is not yet final.id: 26891
Updated 2/22/2024Remand for primary caregiver diversion under the new law was not required where the county had yet to set up such a program.Defendant pled guilty to identity theft. She argued that should have been given a hearing on her eligibility for primary caregiver diversion under newly enacted Penal Code section 1001.83. However, remand was not required since the county had yet to create a primary program under the statute. A certificate of probability cause to raise the issue was not required since it did not go the validity of the plea.id: 27080
Updated 2/22/2024Driving under the influence defendants are not entitled to pretrial mental health diversion under section 1001.36.In 2018, the Legislature enacted Penal Code section 1001.36, making defendants charged with a misdemeanor or felony and who suffer from qualifying mental health disorder generally eligible for pretrial mental health diversion. However, DUI defendants have long been found ineligible for any pretrial diversion. The Legislature did not intend to make DUI defendants eligible for pretrial mental health diversion under section 1001.36.id: 27131
Updated 2/22/2024Pretrial mental health diversion is not available for defendants charged with DUI offenses.Penal Code section 1001.36 authorizes trial courts to grant pretrial diversion to defendants who suffer from mental disorders. Vehicle Code section 23640 prohibits pretrial diversion in any case charging a driving under the influence offense. The latter prevails and prevents pretrial mental health diversion for defendants charged with DUI offenses.id: 27065
Updated 2/4/2024The trial court did not err in considering reports originally prepared for an NGI plea in denying defendant’s request for mental health diversion.The trial court did not err in denying defendant’s motion for mental health diversion. When considering the issue, the court properly relied on reports prepared for purposes of the original not guilty by reason of insanity plea to find defendant’s schizoaffective disorder was not a significant factor in his criminal behavior. Defendant also forfeited the claim on appeal by not raising it in the trial court. id: 27326
Updated 2/4/2024Request for mental health diversion must be made pretrial. After his conviction for resisting arrest, defendant requested mental health diversion under Penal Code section 1001.36. However, defendant was ineligible for diversion under this provision because he did not make his request before trial.id: 27292
Updated 2/4/2024Defendant who alleged that he may be suffering from sexual abuse or substance abuse as a result of his military service pled a qualifying condition for purposes of resentencing under section 1170.91. The trial court erred in denying defendant’s petition for resentencing under Penal Code section 1170.91. He was a former Air Force member who alleged that both sexual abuse and substance abuse occurred during his time in the Air Force. The court erred by finding this was insufficient to meet the statutory criterial, which requires only that the defendant may be suffering from a qualifying condition as a result of his military service.id: 27359
Updated 2/3/2024Defendant convicted of driving under the influence of drugs was ineligible for misdemeanor diversion under section 1001.95. Penal Code section 1001.95 authorizes diversion for all misdemeanor defendants except for those listed in subdivision (e), and misdemeanor driving under the influence defendants pursuant to Vehicle Code section 23640. id: 27750
Updated 2/3/2024The trial court has no sua sponte duty to consider mental health diversion. Penal Code section 1001.36 does not confer a sua sponte duty on trial courts to consider mental health diversion. Trial counsel did not render ineffective assistance in failing to request mental diversion where prejudice could not be established since the court suggested that mental illness did not play a significant role in the charged robbery. id: 27775
Updated 2/2/2024Defendant was ineligible for relief under section 1170.91 because his offense required sex offender registration.After serving 20 years of a life term, defendant petitioned for resentencing under Penal Code section 1170.91(b) due to substance abuse related to military service. The law applied retroactively to defendant’s case, which was pending on appeal at the time it became effective. However, defendant’s crimes required sex offender registration and for that reason he was ineligible for relief under section 1170.91.id: 27866
Updated 2/2/2024The trial court lacks discretion to consider a defendant’s request for mental health diversion after jeopardy has attached at trial or the entry of a guilty plea.Penal Code section 1001.36 authorizes pretrial diversion for defendants with qualifying mental disorders. The request for diversion must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.id: 27883
Updated 2/1/2024Misdemeanor DUI’s are not eligible for statutory diversion.Newly enacted Penal Code section 1001.95 allows defendants charged with misdemeanors to be eligible for diversion at the discretion of the judge. However, Vehicle Code section 23640 provides that those charged with driving under the influence are categorically ineligible for diversion. The two statutes can be harmonized, and misdemeanor diversion is unavailable to defendants charged with DUI.id: 27939
Updated 2/1/2024The trial court had no sua sponte duty to consider mental health diversion.Penal Code section 1001.36 does not confer a sua sponte duty on trial courts to consider mental health diversion. Nonetheless, the trial court was mindful of section 1001.36 and did not believe mental illness played a role in defendant’s robberies. Trial counsel did not render ineffective assistance by failing to seek diversion given the lack of evidence to support the request.id: 27959
Updated 2/1/2024The trial court, on remand, did not err by failing to conduct a full evidentiary hearing on the question of defendant’s eligibility for mental health diversion.The case was sent back to the trial court on remand to conduct a mental health diversion eligibility hearing under Penal Code section 1001.36. The trial court did not thereafter err in failing to conduct a full evidentiary hearing contrary to the defendant's claim, the court did not rely on the charges to deny diversion, but rather on the circumstances of the charged offenses. The court did err in relying on the general objectives of sentencing in denying diversion but that error was harmless in light of the record. The court also erred in failing to resentence the defendant as directed in the remand order so the matter was remanded again for resentencing.id: 28011
Updated 2/1/2024The trial court did not need the prosecutor’s consent before granting mental health diversion.The trial court erred in finding the prosecutor's consent was required before granting mental health diversion. However, the error was harmless where the court independently found defendant did not meet the criteria for diversion.id: 28012
Updated 1/31/2024Defendant failed to show that his changed conduct qualified him for pretrial mental heath diversion. The trial court did not err in finding that defendant failed to show he suffered from a mental disorder that qualified him for pretrial diversion under Penal Code section 1001.36. The trial court could reasonably have found that the changes observed by defendant’s relatives and his employer were attributable to his personality and significant drug use, and not the emergence of bipolar disorder. id: 27777
Updated 1/31/2024Defendant failed to show his charges were not brought on by his drug use and so the court did not err in denying his request for mental health diversion.The trial court did not err in finding the defendant failed to meet his burden of showing that he suffered from bipolar disorder and therefore denying his request for pretrial mental health diversion. The changes observed by defendant’s relatives could well have been brought on by his personality and significant drug use, and not the emergence of bipolar disorder.id: 28037
Application of amendment to mental health diversion statute eliminating eligibility for sex offenders did not violate ex post facto provisions. Defendant who had been convicted years earlier of certain sex offenses sought the benefit of mental health diversion under newly enacted Penal Code section 1001.36. He argued the provision applies retroactively, and the subsequent amendment eliminating eligibility for certain defendants like himself cannot apply retroactively without violating ex post facto principles. However, because all relevant legislative activity occurred years after defendant committed his offenses, he could not have relied on the prospect of receiving diversion at the time he committed the offenses, so the amendment eliminating eligibility for sex offenders was not an ex post facto law.id: 26173
Pretrial diversion for mentally ill defendant’s statute does not apply retroactively to convicted defendants. Defendant was convicted of indecent exposure and argued for retroactive application of Penal Code section 1001.36, which authorizes “pretrial diversion” in certain cases involving mentally disordered offenders. However, the Legislature did not intend for section 1001.36 to apply retroactively to defendants whose cases have already progressed beyond the stage of trial, adjudication of guilt and sentencing. id: 26215
The new mental health diversion law does not apply to juveniles.The 15 year-old was found to have murdered her newborn baby. She was not eligible for referral to a mental health diversion program pursuant to the newly enacted Penal Code sections 1001.35 and 1001.36 since the new law does not apply to juveniles.id: 26108
Military diversion is not available for defendant charged with drunk driving.Vehicle Code section 23640 prohibits military diversion pursuant to Penal Code section 1001.8 for defendants charged with driving under the influence offenses.id: 24849
The trial court may not terminate a defendant from diversion based solely on the inability to pay the program fees. A criminal defendant granted the deferred entry of judgment under Penal Code section 1000 et seq. may not be terminated from such diversion based solely on her inability to pay the fees of the program to which she had been referred.id: 21968
There was a rational basis for the deferred entry of judgment law’s focus on juvenile felons. The minor was a first-time juvenile misdemeanant. He argued the deferred entry of judgment program for first-time juvenile felons which allows them to have their charges dismissed and the records sealed after successfully completing probation violates equal protection principles by denying him the benefits afforded juvenile felons. However, the DEJ laws benefits were rationally restricted to juvenile felons because of the severe consequences otherwise applicable to them. id: 21074
Court erred in finding illegal alien status disqualified a person from participating in the deferred entry of judgment program.The trial court erred in ruling that illegal aliens are categorically excluded from participation in the deferred entry of judgment program for first time drug offenders. (Penal Code section 1000 et seq.) Trial courts are free to consider illegal alien status as a factor in determining whether a defendant is a good candidate for the program, but illegal alien status is not an automatic disqualification.id: 14902
Trial court has no power to overrule the D.A.'s determination that defendant was ineligible for a deferred entry of judgment.The trial court did not err when it concluded it could not overrule the prosecutor's determination that he was ineligible for the deferred entry of judgment process under Penal Code section 1000-1000.4.id: 15575
Absent the prosecutor's agreement, the trial court lacked the authority to defer entry of judgment under Penal Code section 1000.Defendant was convicted of possessing methamphetamine, cocaine and more than 28.5 grams of marijuana. Defendant move to have the entry of judgment deferred under Penal Code section 1000, et seq. The prosecutor opposed the motion arguing defendant was ineligible for diversion. The court disregarded the prosecutor's opposition, granted the motion, and referred defendant to the probation department. However, without the prosecutor's agreement, the trial court lacked the authority to defer entry of judgment under section 1000.id: 16844
Trial court may not deny a deferred entry of judgment under Prop 21 to a minor simply to deter others who might engage in drug smuggling.The deferred entry of judgment provisions of Welfare and Institutions Code section 790 were enacted as part of Proposition 21. When a minor meets the eligibility requirements of section 790, subd.(a), the court may deny the DEJ only if it determines the minor would not benefit from the education, treatment or rehabilitation available through the program. The trial court abused its discretion in denying petitioner the DEJ since it did not do so because she was unamenable to education, treatment or rehabilitation but because the court wished to deter other minors who might engage in sophisticated drug smuggling schemes.id: 17333
A person granted diversion under section 1000 cannot be convicted of failing to appear under section 1320.While still participating in diversion pursuant to Penal Code section 1000, defendant missed a court appearance, and was eventually convicted of failure to appear under Penal Code section 1320. However, an order of diversion under the deferred judgment statutes is neither a release on bail or OR nor the functional of it. A person granted diversion therefore cannot be convicted of failure to appear.id: 18094
Dismissal of charges against a defendant in a deferred entry of judgment program is triggered by successful completion of a drug treatment program, not the passage of three years. Defendant argued that after three years, the trial court loses jurisdiction to revoke a deferred entry of judgment pursuant to Penal Code section 1000 et seq. and to reinstate criminal
proceedings. However, dismissal of charges against a defendant in a deferred entry of judgment program is triggered by successful completion of a drug treatment program, as specified in the statute, and not by the mere passage of three years.id: 19404
A guilty plea prior to sentencing constitutes a prior offense for the diversion statute - Penal Code section 1000.Defendant argued that a guilty plea for a drug related offense
on which sentence has not yet been imposed does not constitute a prior conviction for purposes of diversion under Penal Code section 1000. However, for purposes of section 1000,
"conviction" means the ascertainment of guilt, which occurs as soon as defendant pleads guilty (or a jury enters a guilty verdict) and does not require more.id: 19165
The sole remedy for challenging the finding that defendant was ineligible for deferred entry of judgment under Penal Code section 1000, subdivision (b) is by post-conviction appeal.Defendant filed a mandate petition challenging the correctness of the trial court's decision that he was ineligible for deferred entry of judgment within the meaning of Penal Code section 1000, et seq. because there were allegations he was a recidivist. However, the express language of section 1000, subdivision (b) permits appellate review of a determination an accused drug offender is not eligible for deferred entry of judgment only on direct appeal after a conviction.id: 15573
Person is ineligible for diversion if he or she has suffered a revocation of a conditional sentence without thereafter successfully completing that sentence.Penal Code section 1000, subdivision (a)(4) provides that a defendant is ineligible for diversion if his or her record indicates that "probation or parole has ever been revoked without thereafter being completed." The term "probation" in that section was intended to include both formal probation and summary probation. Summary probation is now known as "conditional sentence," but the new language effected no charge in the application of section 1000, subdivision (a)(4). Therefore, a defendant is ineligible for diversion if he or she has suffered a revocation of conditional sentence without thereafter successfully completing that sentence.id: 10752
Prior conviction for marijuana possession renders defendant ineligible for diversion.A prior conviction for possession of marijuana under Health and Safety Code section 11357, subdivision (b) disqualifies a defendant from diversion under Penal Code section 100, subdivision (a)(1). Moreover, the trial court was not required to hold a hearing to consider the question whether defendant's prior conviction for marijuana possession rendered him ineligible for diversion.id: 10760
Evidence that defendant was driving while under the influence of a drug established his ineligibility for diversion despite the fact that the offense was never charged.Defendant was charged with possession of cocaine, possession of a smoking device and being under the influence of cocaine. Defendant made application for diversion but was determined ineligible because the uncontradicted evidence showed defendant was driving a motor vehicle and was under the influence of cocaine at the same time. This was a disqualifier for diversion notwithstanding that defendant was never charged with driving under the influence of the drug. The trial court was correct in stating that once the prosecutor determined defendant was ineligible for diversion, the court has no power to refer him for screening for diversion.id: 10735
A defendant must have completed the diversion program five years before the new arrest in order to be eligible for a second diversion.The five year period in former Penal Code section 1000, subdivision (a)(5) which indicates that a defendant is eligible for drug diversion only if he has not previously been diverted within five years of the new arrest dates from the completion of the diversion program rather than the initial grant of diversion.id: 10690
Court erred in denying diversion to first time possessor of a small amount of marijuana.Defendant was convicted of possession of less than one ounce of marijuana pursuant to Health and Safety Code section 11357, subd. (b). Following a conviction under that provision the defendant may choose to either pay a fine (not more than $100) or accept diversion. The court erred in denying defendant's request for diversion.id: 10705
Defendant charged with driving under the combined influence of alcohol and drugs is not eligible for diversion.Defendant was arrested and charged with one count of being under the influence of a controlled substance pursuant to Health and Safety Code section 11550, and one count of driving while under the combined influence of alcohol and a controlled substance under Vehicle Code section 23152, subdivision (a). The trial court properly found 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 <197> the violation of Vehicle Code section 23152, subdivision (a) <197> which was not subject to diversion.id: 10710
Defendant is not entitled to a pretrial hearing to determine if the district attorney properly found she was ineligible for diversion.Where a defendant makes application for drug diversion under Penal Code section 1000, et seq., that defendant is not entitled to a pre-trial hearing to test the sufficiency of the evidence underlying the determination of ineligibility and to provide a record for review on appeal. Instead, her only remedy is to challenge the district attorney's finding of ineligibility in a post-conviction appeal.id: 10711
Denial of diversion to those who possess a small amount of cocaine base while personally armed did not violate equal protection.Appellant was convicted of Health and Safety Code section 11370.1 possession of half a gram or less of a substance containing cocaine base while in the immediate personal possession of a loaded firearm. He argued the provision denied him equal protection of the laws by punishing him more harshly than someone charged under a possession statute augmented by a firearm enhancement. Specifically he claimed a fundamental liberty interest was impacted by the statutory denial of diversion under section 11370.1. However, the denial of diversion under the provision is rationally related to the legitimate purpose of the statute and the Legislature may single out a particular threat to society and punish as a separate category from other types of threats.id: 9530
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245