Harvey v. Superior Court

Opinion

FRIEDMAN, J.

An information charged petitioner with burglary, grand theft, receiving stolen property and possession of marijuana. Petitioner sought diversion as to the marijuana count and the probation officer filed a report recommending diversion. The trial court rejected the diversion motion. Petitioner seeks a writ of prohibition to prevent his trial on the marijuana count, charging abuse of discretion.

The trial court’s order was in excess of jurisdiction because it rested upon an error of law, thus amounting to a failure to exercise the discretionary factors designated by law.

In denying diversion, the trial judge declared that persons who are involved in marijuana because of lack of education or through ignorance could be proper candidates for diversion, but that the evidence showed petitioner did not lack understanding and could take marijuana or leave it alone, thus that petitioner would not “benefit” from diversion.

The diversion law is confined to prosecutions for enumerated narcotics offenses; it does not extend to other crimes even when charged concurrently with an enumerated narcotics offense (Pen. Code, § 1000, subd. (a)). The procedure is not limited to those who through ignorance or lack of education wander into drug abuse. The prime question is whether the accused “would be benefited by education, treatment, or rehabilitation.” (Pen. Code, §§ 1000.1, subd. (a), 1000.2.) The statute is intended “to offer a second chance to offenders who are minimally involved in crime and maximally motivated to reform. . . .”

(People

v.

Superior Court,

11 Cal.3d 59, 66 [113 Cal.Rptr. 21, 520 P.2d 405].) The tentative user is to be identified and counseled before he becomes deeply involved in drugs.

(Id.,

p. 61.) The program does not exclude deliberate narcotics violators, but is designed to include those who can be motivated into future conformity with the law. The trial court failed to recognize that objective.

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