People v. Barrajas

Opinion

BUCKLEY, J.

Rene Barrajas appeals following his conviction for attempted possession of a controlled substance. (Health & Saf. Code, § 11377,

[928]

subd. (a); Pen. Code, § 664.)

1

He challenges the district attorney’s determination that he was statutorily ineligible for drug diversion. The People concede the issue. We will reverse.

Background

On March 8, 1996, Deputy Eligió Lara of the Tulare County Sheriff’s Department was working undercover as part of a drug sting operation at the Fast and Friendly Market in New London when Barrajas and another man drove into the parking lot and asked him if he had any “crank.” Lara responded that he did, and assured the two men it was “good stuff.” In fact, it was crushed Cheerios and mothballs wrapped in a bindle to look like methamphetamine. After some further negotiations, Barrajas bought one of the bindles from Lara for $20. When the passenger opened the bindle and tasted its contents, he demanded the money back. Instead, he and Barrajas were arrested.

Barrajas was charged with attempted possession of methamphetamine, a felony. He pleaded not guilty and requested diversion, pursuant to section 1000 et seq. (See discussion,

post.)

The district attorney opposed the request on the ground that diversion is not available to one who

attempts

to commit a divertible offense. The court denied the diversion request, and Barrajas submitted his case on the preliminary hearing transcript. The court then found him guilty of attempted misdemeanor possession and sentenced him to 90 days in jail, but stayed execution of the sentence pending the resolution of this appeal.

Discussion

At all times pertinent to this case, former sections 1000 to 1000.5 allowed trial courts to “divert” from the normal criminal process first time drug offenders who were formally charged with certain specified offenses, who had not yet gone to trial, and who were found to be suitable for treatment or rehabilitation at the local level.