People v. Delafuente CA3

Filed 8/7/15 P. v. Delafuente CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C077662

Plaintiff and Respondent, (Super. Ct. No. 62127193)

v.

ROBERTO KIYOSHI DELAFUENTE,

Defendant and Appellant.

Defendant Roberto Kiyoshi Delafuente appeals following his conviction for possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) He challenges the prosecuting attorney’s determination of ineligibility for deferred entry of

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judgment pursuant to Penal Code section 1000 (unspecified statutory references are to this code). We reverse the judgment and remand to the trial court for further proceedings to determine defendant’s eligibility under that statute. FACTUAL AND PROCEDURAL BACKGROUND While driving home, defendant lost control of his car and crashed into a pole. Responding officers found a syringe containing 0.66 gram of heroin inside the car. Defendant told officers he was in a hurry to get home to use the heroin. Defendant was charged with possession of a controlled substance and misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)). He requested deferred entry of judgment under section 1000. The probation department submitted a report concluding he was “an appropriate candidate” under that statute. The trial court initially agreed but continued the matter for further briefing in light of the prosecuting attorney’s indication of ineligibility. The prosecuting attorney submitted its opposition to the trial court, arguing defendant was ineligible under section 1000 because he “engaged in an act of violence in connection to the charged narcotics offense by driving recklessly while in fresh possession of heroin” and he admitted having a 10-year drug addiction. Defendant countered that reckless driving is not a crime of violence, and in any event, his drug possession did not play a part in his alleged reckless driving. The trial court issued an order stating the prosecuting attorney’s determination of ineligibility was “not subject to pre-trial review” and defendant’s “ ‘sole remedy . . . is a postconviction appeal.’ ” Defendant entered a plea of no contest to the charge of drug possession in exchange for dismissal with a Harvey waiver of the reckless driving charge.1 The trial