People v. Ochoa

Opinion

RAYE, J.

After the trial court denied his motion to defer entry of judgment (Pen. Code, § 1000 et seq.), defendant Oscar Armando Ochoa pled guilty to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) and using it (Health & Saf. Code, § 11550, subd. (a)). Thereafter, defendant was placed on probation pursuant to Proposition 36. (Pen. Code, § 1210.1.)

On appeal, defendant contends the court erred in finding that his January 2006 conviction under Health and Safety Code section 11357, subdivision (b)—occurring more than two years before the current February 2008 offenses—rendered him ineligible for deferred entry of judgment under Penal Code section 1000.

1

The People concede the error and we agree.

In contrast to Proposition 36, which applies following conviction and to a slightly different category of cases, Penal Code section 1000 applies at the accusatory pleading stage. It provides that a defendant who has been charged with specified drug offenses and has not committed a crime of violence or threatened violence may undergo a drug education and treatment program in lieu of undergoing a criminal prosecution, and upon satisfactory completion may obtain dismissal of the criminal charges. (See

In re Varnell

[862]

(2003) 30 Cal.4th 1132, 1138-1139 [135 Cal.Rptr.2d 619, 70 P.3d 1037];

People v. Sharp

(2003) 112 Cal.App.4th 1336, 1341 [5 Cal.Rptr.3d 771]; Pen. Code, § 1210.1, subds. (a), (b)(5).)

Prior to his guilty plea, defendant asked that he be found eligible for deferred entry of judgment under Penal Code section 1000. The prosecution took the position that defendant’s January 2006 marijuana possession conviction (Health & Saf. Code, § 11357) automatically disqualified him from the operation of section 1000, presumably because he was precluded from satisfying the condition that he “ha[ve] no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense” within the meaning of section 1000, subdivision (a)(1). The court apparently accepted the prosecution’s position, because it set the matter for trial. Thereafter, defendant entered his guilty pleas.