People v. Wright

California Court of Appeal Apr 25, 1975 No. Docket Nos. 25899, 45130Published

Before: Hanson

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Holding. The court held that an order granting diversion is an appealable order, but that a trial court lacks jurisdiction to grant diversion to a defendant after the commencement of a criminal trial.

Issues

Whether an appeal lies from a superior court diversion order.
Whether the superior court acted beyond its jurisdiction in diverting the defendant after his trial and conviction.

Disposition. reversed

Quotations verified verbatim against the opinion

“Hence the order granting diversion is an appealable order.”

“the clear wording of the diversion provision . . . precludes a defendant from initiating diversion proceedings by tendering a consent after commencement of trial”

“defendant’s subsequent consent and the court’s efforts to reinstitute diversion after trial were invalid.”

[492]

Opinion

HANSON, J.

This is a consolidated People’s appeal and petition for writ of mandate regarding an order made by the superior court on August 22, 1974, which diverted Kevin Roscoe Wright (hereinafter referred to as defendant) to a special rehabilitative treatment center afforded to first-time drug offenders pursuant to Penal Code sections 1000-1000.3.

By information dated May 29, 1974, defendant was charged with possession for sale of marijuana (count I, Health & Saf. Code, § 11359, subd. (a)), and with possession of marijuana (counts II and III, in violation of Health & Saf. Code, § 11357, subd. (a)).

After taking the required waivers, defendant was tried by the court and was acquitted as to counts II and III. As to count I, defendant was found not guilty of possession for sale of marijuana (Health & Saf. Code, § 11359, subd. (a)), but guilty of the lesser included offense of possession of marijuana (Health & Saf. Code, § 11357, subd. (a)).

At the conclusion of trial defendant requested to be diverted on the lesser included offense. The court took the request under submission and after the filing of a probation report, granted the defendant’s request.

QUESTIONS

The People on appeal question (1) whether an appeal lies from a superior court diversion order, and (2) whether the superior court acted beyond its jurisdiction in diverting the defendant after his trial and conviction.

We must first decide whether there is in existence an appealable order. We hold that the order granting diversion is analogous to a final judgment in a “special proceeding”

(People

Murphy,

70 Cal.2d 109, 115 [74 Cal.Rptr. 65, 448 P.2d 945]), and hence is final for the purposes of appellate review. “. . . It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature, of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is

People v. Wright

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HANSON, J.

QUESTIONS

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