People v. MacAfee

[811]

Opinion

CHRISTIAN, J.

Scott Andrew Macafee appeals from an order admitting him to probation after the court found him "guilty of possession of cocaine (Health & Saf. Code, § 11350). As part of a negotiated disposition appellant had waived trial by jury. Counts charging disorderly conduct (Pen. Code, § 647, subd. (f)) and battery (Pen. Code, § 242) were dismissed, and the drug count was submitted on the preliminary hearing transcript. The appeal challenges a prior determination by the prosecutor that Macafee was not eligible for diversion (Pen. Code, § 1000).

On the night of December 24-25, 1978, appellant approached a passenger in a vehicle and struck him on the side of the head. The victim complained to the police. An officer who came to investigate thought appellant was intoxicated. The officer arrested appellant for disorderly conduct, and the victim made a citizen’s arrest for battery.

The officer took appellant to jail. A booking search revealed a razor blade in a folded piece of paper and a usable quantity of cocaine in a paper bindle.

Appellant challenges the prosecutor’s determination that he was ineligible for diversion. (Pen. Code, § 1000, subd. (b).)

1

That determination is reviewable on appeal; if it is found to have been erroneous the judgment must be set aside and the cause remanded to permit the trial court to exercise its discretion to divert the appellant.

(Sledge

v.

Superior Court

(1974) 11 Cal.3d 70, 75-76 [113 Cal.Rptr. 28, 520 P.2d 412].)

[812]

For an accused to be eligible for diversion, Penal Code section 1000 requires, inter alia, that “[t]he offense charged did not involve a crime of violence or threatened violence.” (Pen. Code, § 1000, subd. (a)(2).) “Since none of the Health and Safety Code violations enumerated in section 1000 involves violence, the Legislature apparently intended in subdivision (a)(2) to refer to some additional offense committed as part of or concurrently with the narcotics offense.”