People v. Cina

California Court of Appeal Aug 14, 1974 No. Docket Nos. 24812, 43854Published

Before: Fleming

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Holding. The trial court erred in diverting the defendant because he was ineligible for diversion under Penal Code section 1000 due to the existence of evidence of a non-enumerated narcotics offense, specifically the cultivation of marijuana.

Issues

Whether a defendant charged with both possession and cultivation of marijuana is eligible for diversion under Penal Code section 1000.
Whether the trial court may exercise discretion to divert a defendant before the district attorney has determined eligibility.

Disposition. Peremptory writ issued; appeal dismissed.

Quotations verified verbatim against the opinion

“We think the trial court erred in diverting Cina over the district attorney’s objection.”

[138]

Opinion

FLEMING, J.

The People seek a writ of mandate to compel the superior court to set aside an order diverting Joseph Ronald Cina, Jr., from prosecution on a charge of possession of marijuana (Health & Saf. Code, § 11357) pursuant to Penal Code sections 1000 to 1000.4. The People also appeal from the same order.

Penal Code sections 1000 to 1000.4 permit the trial court under specified circumstances to temporarily divert prosecution of a defendant for certain narcotic and drug abuse offenses, and upon defendant’s successful completion of a program of education, treatment, or rehabilitation, to dismiss the charges without prosecution. The issue here is whether Cina qualified for such diversion proceedings,

At the preliminary hearing Los Angeles Police Officer Felix testified that on 9 July 1973 he saw three marijuana plants growing in the back yard garden of a residence on Wakefield Street. He knocked at the front door and, when Cina answered, arrested him. Cina admitted the three marijuana plants were his. Cina also gave Felix a plastic container, a baggie filled with marijuana, and a marijuana cigarette and consented to a search of the house. Inside, Felix found a water pipe, additional marijuana debris, and a small piece of hashish.

The district attorney charged Cina with possession of marijuana (Health & Saf. Code, § 11357) and with cultivation of marijuana (Health & Saf. Code, § 11358).

One the date set for trial Cina requested the court to divert him on the charge of possession of marijuana. Over the district attorney’s objection, the trial court referred the cause to the probation department for a diversion report. On receipt of the report the court, again over the district attorney’s objection, diverted Cina on the possession charge and continued proceedings on the cultivation charge for one year.

Penal Code section 1000 provides: “(a) This chapter [Special Proceedings in Narcotics and Drug Abuse Cases] shall apply whenever a case is before any court upon an accusatory pleading for violation of Section[s]

People v. Cina

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FLEMING, J.

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