People v. Alonzo

Opinion

STONE (W. A.), J.

This is a consolidated People’s appeal and petition for writ of mandate regarding a trial court order granting postconviction diversion to defendant, John Alonzo, pursuant to Penal Code section 1000 et seq. The issues presented are (1) whether a posttrial diversion order is an appeal-

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able order, and (2) whether the trial court acted in excess of its jurisdiction in granting diversion after trial and conviction.

Statement of the Facts and Proceedings

A first amended information charged defendant in count one with offering to sell and furnish cocaine (Health & Saf. Code, § 11352) and in count two with possession of cocaine (Health & Saf. Code, § 11350). The court denied defendant’s pretrial request for diversion, since count one alleged a nondivertible offense, offering to sell and furnish. (Pen. Code, § 1000, subd. (a).) Defendant was convicted of possession, but was acquitted of offering to sell and furnish. He then renewed his request for diversion, and the court referred the matter to the probation department for evaluation to determine whether defendant was a qualified candidate for diversion. At the sentencing hearing the trial court granted defendant’s request over the prosecutor’s objection. The court did not set the conviction aside but suspended the proceedings for a period of six months to two years.

The People filed a petition for writ of mandate. We directed defendant, real party in interest, to file preliminary opposition addressing the issue of appealability and the propriety of peremptory writ relief. Thereafter, the People filed a timely notice of appeal from the order granting diversion.

Discussion

Both of the issues raised in this appeal were addressed by the court in

People

v.

Wright

(1975) 47 Cal.App.3d 490 [120 Cal.Rptr. 899].

The defendant in