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Court of Appeal, Fourth District, Division 1, California.

Christopher J. McGRATH, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent (The PEOPLE, Real Party in Interest).

No. D023662.

Decided: July 18, 1995

Francis J. Bardsley, Public Defender, Richard P. Siref and Mary Lynn Price, Deputy Public Defenders, for petitioner. No appearance for respondent. Paul J. Pfingst, Dist. Atty., Thomas F. McArdle and Charles E. Nickel, Deputy Dist. Attys., for real party in interest.

In these proceedings we consider whether a defendant solely by virtue of being charged under the “three strikes” law is ineligible for pretrial diversion for drug offenders pursuant to Penal Code 1 section 1000 et seq.   Based upon specific language in the “three strikes” law prohibiting diversion only after a defendant has been “convicted” of a felony and prior serious or violent felonies within the meaning such law have been pled and “proved,” we conclude simply charging a defendant under the “three strikes” law does not preclude eligibility for diversion.


In October 1979, Christopher J. McGrath was convicted of five counts of robbery and one count of rape.   In February 1995, McGrath was arrested for possessing .5 grams of cocaine base and 1.5 grams of marijuana.

A felony complaint was filed charging McGrath with violating Health and Safety Code section 11350, subdivision (a), possession of cocaine base, and Health and Safety Code section 11357, subdivision (b), possession of not more than 28.5 grams of marijuana.   In addition, one prison prior pursuant to section 667.5 was alleged and six “strike” priors pursuant to section 667, subdivisions (b) through (i) and section 1170.12.   At his preliminary hearing McGrath applied for diversion pursuant to section 1000.   The magistrate proceeded with the preliminary hearing, putting the diversion matter over pending submission of legal briefs.   McGrath was held to answer on both counts.

An information was filed alleging the same charges and priors as those alleged in the complaint.   At arraignment in the superior court, McGrath applied for diversion, arguing that he met the criteria for diversion under section 1000 and that under the language of the “three strikes” law he was only ineligible for diversion if he had been convicted of the underlying felony and the priors had been pled and proven.   The People argued diversion was precluded under the “three strikes” law.   Although agreeing with the defendant that a literal reading of the law supported his request, the trial judge denied the request because he concluded granting diversion would be contrary to what the Legislature and the people intended when they enacted the “three strikes” law.   The trial judge invited McGrath to seek a writ in this court for what he considered to be a “good issue” for the Court of Appeal.

McGrath petitioned for a writ of mandate.   We issued an order to show cause, stayed trial and heard oral argument.


 We first consider whether this is a proper matter for writ review.   The People argue that under section 1000, subdivision (b), the district attorney makes the initial determination whether a defendant is eligible for diversion and that a defendant is not entitled to pretrial review of that determination.   That is, writ review is improper and a defendant's sole remedy is appeal after conviction.  (See Sledge v. Superior Court (1974) 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412;  People v. Brackett (1994) 25 Cal.App.4th 488, 30 Cal.Rptr.2d 557;  People v. Superior Court (Hayle) (1977) 74 Cal.App.3d 604, 141 Cal.Rptr. 496.)   We disagree.

The cases relied upon by the People involve the district attorney's preliminary determination regarding whether a defendant would be eligible for diversion considering the six qualifications for eligibility listed in section 1000, subdivision (a).2  The cases concluded this was a determination that generally could be made on the defendant's record and that there was no intent on the Legislature's part to interrupt the criminal proceedings for the trial court or appellate court to review such a ministerial determination.   Rather, review was available on appeal if convicted and, if the district attorney was found to be incorrect in its determination, the matter would be returned to the trial court to exercise its discretion whether to divert the defendant under section 1000.2.  (Sledge v. Superior Court, supra, 11 Cal.3d at pp. 73–76, 113 Cal.Rptr. 28, 520 P.2d 412;  People v. Brackett, supra, 25 Cal.App.4th at pp. 495–497, 500–501, 30 Cal.Rptr.2d 557.)

Here, the district attorney's preliminary determination regarding McGrath's qualifications under the diversion statute is not in issue.   Rather, the question presented is whether the “three strikes” law precludes preconviction diversion, a strictly legal question properly determined by the court through either pretrial writ review or, if necessary, postconviction appeal.   We conclude immediate writ review is warranted because the petition raises an issue with potential legal impact on numerous pending criminal prosecutions.   Should writ review be denied, a multiplicity of appeals raising identical issues would result.  (See Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328, 262 Cal.Rptr. 405.)

 We turn now to the question whether the “three strikes” law precludes pretrial diversion under section 1000 et seq.   In March 1994 the Legislature enacted section 667, subdivisions (b) through (i) which substantially increased the period of imprisonment for persons convicted of any felony offense who have previously been convicted of one or more serious felonies within the meaning of section 1192.7, subdivision (c) and/or violent felonies within the meaning of section 667.5, subdivision (c).  (Stats.1994, ch. 12, No. 2 West's Cal.Legis.Service, p. 56.)   In November 1994 the voters approved Proposition 184 which enacted section 1170.12.   Section 1170.12 contains almost identical provisions to those earlier enacted by the Legislature.   The two enactments are commonly referred to as the “three strikes” law and require a person convicted of a felony who has two or more prior violent or serious felony convictions to be sentenced to a life term.  (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).)   The two statutes contain identical provisions that “[n]otwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions [within the meaning of the statute] ․, [¶] [d]iversion shall not be granted․”  (§§ 667, subd. (c)(4);  1170.12, subd. (a)(4).) 3

 To construe the statutory provision, we apply well-established rules of statutory construction which apply to both legislative and initiative enactment.  (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212, 246 Cal.Rptr. 629, 753 P.2d 585.)   The intent of the enacting body is the paramount consideration in construing statutory provisions.  (Powers v. City of Richmond (1995) 9 Cal.4th 85, 91, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)   To determine that intent we look first to the language of the statute, giving the words their ordinary meaning.   (Ibid.)  “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).  [Citations.]”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   However, the language of a statute should not be given a literal meaning if doing so would result in absurd unintended consequences.  (People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420.)   In construing statutory provision, however, a court is not permitted to rewrite the statute to conform to an assumed intent that does not appear from its language.  (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381, 267 Cal.Rptr. 569, 787 P.2d 976.   See also Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15 Cal.App.4th 119, 134, 18 Cal.Rptr.2d 626.)

 Since 1873 common law crimes have not been recognized in California.  (§§ 2, 6.)   No act or omission is criminal except those prescribed by the Penal Code or other statute, ordinance, or municipal, county, or township regulation.  (§ 6;  see generally 1 Witkin, Cal.Criminal Law, (2d ed.) § 14, p. 18.)   Where ambiguity exists in a penal statute, the construction that is more favorable to the defendant will ordinarily be adopted.  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186.)

McGrath contends the language of the provision is plain and unambiguous.   A defendant charged under the “three strikes” law is only ineligible for diversion after he has been convicted and after the strike priors have been proven.   Because he has neither been convicted of the charged offenses nor the alleged strikes proved, McGrath argues the “three strikes” law does not prohibit him from being eligible for diversion.   The People, on the other hand, contend that read literally the provision prohibits a court from exercising a power to grant postconviction diversion, a power the sentencing court never had.4  The People argue there is a patent drafting error and urge us to interpret the provision to carry out the purpose of the “three strikes” law to ensure longer prison sentences and greater punishment for certain recidivist felony offenders.  (See § 667, subd. (b);  Ballot Pamp., Preamble of Proposed Law (Nov. 8, 1994) p. 64.)

Ignoring a fundamental distinction between judicial and legislative function, the People ask this court to rewrite section 667, subdivision (c) and section 1170.12, subdivision (a) to read that upon the charging of a felony and the alleging of a prior serious or violent felony conviction under the “three strikes” law, a defendant is ineligible for diversion.   The People urge us to do so because that is what they perceive to have been the intent of the Legislature and the people.   But the plain language of the statutes clearly does not support such a conclusion.   Rather, the plain language of the statutes require that a defendant be convicted of a felony and the prior strike allegations be proved before a defendant is ineligible for diversion.   Contrary to the People's position, such predicate requirements do not undermine, or render absurd, the objectives behind the three strikes law.

The people or the Legislature could enact a statute abrogating pretrial diversion programs for defendants charged under recidivist statutes.   They did not do so in this case.   We cannot and will not rewrite the statutory language in the face of its clear and unambiguous language.  (Napa Valley Wine Train, Inc. v. Public Utilities Com., supra, 50 Cal.3d at p. 381, 267 Cal.Rptr. 569, 787 P.2d 976.) 5


Let a writ of mandate issue directing the court to consider McGrath's application for diversion and to determine whether he should be diverted in accordance with sections 1000 et seq.6  The stay issued June 1, 1995 is vacated.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   To make a preliminary determination a defendant is eligible for diversion, the district attorney reviews the defendant's file to determine:  (1) the defendant does not have any prior convictions for an offense involving controlled substances;  (2) the charged offense does not involve violence or threatened violence;  (3) there is no evidence of drug violations other than those listed in the subdivision;  (4) the defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed;  (5) the defendant's record does not indicate he or she had been diverted pursuant to the chapter within five years before the alleged commission of the charged offense;  and (6) the defendant has no felony conviction within five years before the alleged commission of the charged offense.  (§ 1000, subds. (a) & (b).)

3.   The offenses alleged occurred after the effective dates of both “three strikes” enactments.   McGrath was charged under both statutes and we are not asked to determine which statute applies.   Because the provisions at issue here are identical in both statutes, it is unnecessary for us to decide whether one or both of the statutes applies.   We therefore cite the relevant sections from both statutes.

4.   The People argue postconviction diversion was never a possibility during the time the “three strikes” law was being considered and adopted and that the prohibition against diversion was mistakenly included in the subdivisions of the “three strikes” law that limit the court's sentencing power (§§ 667, subd. (c), 1170.12, subd. (a)).   Moreover, according to the People, the one statutory provision providing for postconviction referral to a treatment program (adopted after enactment of the “three strikes” law) is not a true “diversion” program as the term has been commonly understood.  (See § 1000.12, subd. (c) [applying to certain defendants who plead guilty to sexual abuse or molestation of a minor];  Stats.1994, 1st Ext.Sess., ch. 49, § 1, No. 9 West's Legis.Service, p. 4008.)   McGrath, on the other hand, argues that while courts have held there is generally no postconviction diversion under section 1000, the Legislature has recognized that postconviction diversion does exist.  (See § 1001;  Lab.Code § 432.7.)   McGrath further argues that after adoption of the “three strikes” laws the Legislature enacted a posttrial diversion program in section 1000.12.It is unnecessary for us to resolve any conflict between the parties' two positions.   Even if we were to accept the People's position that postconviction diversion does not exist, it would not effect our refusal to rewrite the “diversion” provisions in the “three strikes” law as discussed in the body of our opinion.

5.   Relying on People v. Alonzo (1989) 210 Cal.App.3d 466, 468–470, 258 Cal.Rptr. 263, the People contend a defendant charged under the “three strikes” law has no recourse to seek diversion postconviction if he or she is ultimately convicted of the current charge but the alleged prior “strikes” are not proven.   McGrath, relying on Sledge v. Superior Court, supra, 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412, disagrees.   In reaching our decision, we need not determine which position is correct.

6.   McGrath contends that the trial court found that he “apparently” met the section 1000 criteria and would be eligible for diversion.   He requests that we order the trial court to grant his request for diversion.   The trial court denied the application solely on the grounds of the “three strikes” law and did not make any formal determination regarding McGrath's eligibility.   We therefore remand the matter to the trial court to make such a determination pursuant to sections 1000.2 and 1000.3.

HUFFMAN, Acting Presiding Justice.

BENKE and HALLER, JJ., concur.