People v. Covarrubias

California Court of Appeal Aug 31, 1993 No. B069174Published

Before: Yegan

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Holding. The court held that a defendant is ineligible for drug diversion if there is evidence they were driving under the influence of a controlled substance, even if they were not formally charged with that specific offense. The prosecutor has the authority to determine eligibility based on such evidence, and the court lacks the power to override this determination.

Issues

Whether a defendant is ineligible for diversion when there is evidence of driving under the influence of a controlled substance despite the absence of a formal charge for that offense.
Whether the trial court has the authority to override a prosecutor's determination that a defendant is ineligible for diversion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The uncontradicted evidence shows that appellant was driving a motor vehicle and was under the influence of cocaine at the same time.”

“Contrary to appellant’s claim, there is no requirement that a defendant be actually charged with a disqualifying offense”

“The trial court recognized that the prosecutor acted within statutory authority in determining preliminary screening eligibility for diversion.”

Opinion

YEGAN, J.

Fortino Perez Covarrubias appeals from the judgment (order granting probation) entered after he was convicted in a court trial of possessing cocaine. (Health & Saf. Code, § 11350, subd. (a).) He unsuccessfiilly contends: “The court erred in denying appellant participation in the diversion program.”

Ventura Police Officer Raymond Harer, Jr., saw a vehicle driven by appellant. He stopped it because it had a cracked windshield. Harer noticed that the passenger reached several times under the front seat. He conducted a “pat down” search of appellant for weapons. He felt a hard object which proved to be a metal pipe containing marijuana residue and smelling of burnt marijuana. Harer searched appellant and found several razor blades, a mirror, an empty tube, a plastic baggie containing cocaine, and three bindles of

[641]

cocaine. Appellant exhibited several symptoms of being under the influence of a stimulant, i.e., a pulse rate of 118, rapid speech, and warm, dry skin. In addition, the officer observed that the septum of appellant’s nose was irritated and his pupils exhibited a sluggish reaction to light.

Appellant was charged with possession of cocaine, being under the influence of cocaine and possession of a smoking device. After the preliminary hearing, he was held to answer in the superior court.

After the information was filed in superior court, the matter was continued for “Possible Diversion Request.” Appellant’s counsel stated that the matter had been “referred back to the D.A.’s office for them to determine if they felt that [appellant] was eligible for diversion, ['ll] Apparently Mr. Totten (a deputy district attorney) has made a decision, in his view that [appellant] is not eligible for diversion, based on some sort of reading of the Duncan case

[People

Duncan

(1990) 216 Cal.App.3d 1621 (265 Cal.Rptr. 612)].” The prosecutor stated: “That’s correct.” He further indicated that the application for diversion in municipal court had been withdrawn and that he did not know if a report had been prepared “because the prosecution claimed that he was ineligible in Courtroom 12 [the preliminary hearing courtroom].” Defense counsel stated he did not believe there was “sufficient evidence to indicate that this is a case controlled by Duncan” but acknowledged that “the only solution to the problem would be a post-conviction appeal.” He requested that the matter be reset for trial.

People v. Covarrubias

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YEGAN, J.

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