People v. Burns

[1173]

Opinion

ELIA, J.

In this case we must determine whether the five-year period in former Penal Code section 1000, subdivision (a)(5),

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which indicates that a defendant is eligible for drug diversion only if he has not previously been diverted within five years of the new arrest, dates from the initial grant of diversion or from the completion of the diversion program. We conclude that a defendant must have completed the diversion program five years before the new arrest in order to be eligible for a second diversion.

Facts and Procedural History

On July 21, 1995, a complaint was filed charging defendant Robbie Owen Bums with being under the influence of cocaine in violation of Health and Safety Code section 11550, subdivision (a), a misdemeanor, on July 6, 1995. Defendant entered a plea of not guilty on July 27. On October 6, a diversion eligibility hearing was held as defendant contested the prosecutor’s determination that he was ineligible for diversion. The court denied the request for pretrial review of the prosecutor’s determination of ineligibility. At defendant’s request, the prosecutor stated on the record that the ineligibility determination was based on former section 1000, subdivision (a)(5), as defendant committed a violation of Health and Safety Code section 11550 on October 16, 1989, and completed his diversion program on May 20, 1991.

On November 17, 1995, defendant submitted the misdemeanor charge to the court on the police reports and test results. The court found defendant guilty as charged. Defendant waived time for sentencing, and the court imposed a suspended sentence on various terms and conditions, and stayed the sentence pending appeal.

Defendant appealed the matter to the superior court. He argued that the prosecution misapplied former section 1000, subdivision (a)(5) and erroneously determined that he was ineligible for diversion. The superior court affirmed the judgment of the municipal court on August 8, 1996. On August 20, the superior court certified the matter to this court on its own motion, due to a lack of appellate authority and a perceived lack of statutory clarity on the following issue: Does the five-year period referenced in former section 1000, subdivision (a)(5) commence upon referral to diversion or upon completion of diversion? On September 11, this court transferred the matter to it for decision. The matter was submitted in this court upon the briefs filed in the superior court and oral argument, together with amicus curiae briefs submitted by the Attorney General on behalf of the People and