People v. Haycock

Opinion

CHRISTIAN, J.

Donna Jean Haycock appeals from a probation order entered after a jury-found her guilty of possessing marijuana (Health & Saf. Code, § 11530) and not guilty of possessing dangerous drugs (Health & Saf. Code, § 11910).

Appellant and several other persons were arrested on October 31, 1971, and an information was filed on May 31, 1972. Appellant pleaded not guilty on June 5, 1972, and trial commenced on April 16, 1973.

After the jury returned its verdict, appellant moved for new trial, complaining that the district attorney had failed to advise the defense or the court of appellant’s eligibility for diversion under Penal Code section 1000. The judge stated the view that the request for diversion was timely, but denied the motion for new trial “after reviewing the entire case.”

[92]

The sole issue on appeal is whether appellant was entitled to the diversion treatment provided for first-time drug offenders under Penal Code section 1000 et seq. Section 1000 states: “(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for violation of Section 11500, 11530, 11555, 11556, 11910, or 11990 of the Health and Safety Code and it appears, to the district attorney that all of the following apply to the defendant: (1) The defendant has no prior conviction for any offense involving narcotics or restricted dangerous drugs. (2) The offense charged did not involve a crime of violence or threatened violence. (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. (4) The defendant has no record of probation or parole violations, (b) The district attorney shall review his file to determine whether or not paragraphs (1) to (4), inclusive, of subdivision (a) are applicable to the defendant.”

Appellant contends that under section 1000, subdivision (b), the prosecutor should have reviewed appellant’s file to determine whether she was eligible for diversion, even though the diversion statute did not take effect until December 15, 1972, six months after appellant pleaded “not guilty.” The diversion procedure is applicable whenever “a case is before any court upon an accusatory pleading” for one of the appropriate narcotics charges. (Pen. Code, § 1000, subd. (a).) An “accusatory pleading” is defined in Penal Code section 691 as “an