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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Appellant, v. Rance Anthony REED, Defendant and Respondent.

Cr. 23850.

Decided: February 20, 1974

Joseph P. Bush, Dist. Atty., of Los Angeles County, Harry B. Sondheim, Acting Head Appellate Division, and Arnold T. Guminski, Deputy Dist. Atty., for plaintiff and appellant. Richard S. Buckley, Public Defender, Harold E. Shabo, L. C. Nunley, and Richard A. Curtis, Deputy Public Defenders, for defendant and respondent.

The People appeal from an order of the Superior Court ‘diverting’ defendant from the then pending criminal prosecution.1

In brief, defendant was charged by information with a violation of Health and Safety Code section 11530 (now, section 11357) (possession of marijuana). Defendant was arraigned and pled not guilty. On the date set for trial, defendant appeared in court with his counsel. The trial judge informed defendant that ‘it has been suggested by the District Attorney that . . . defendant . . . [was] eligible for . . . diversion proceedings under the special proceedings in narcotics and drug abuse laws.'2

Defendant's counsel thereupon notified the court that defendant wished to participate in the diversion proceedings and that he was willing to waive time and have the matter set over for a probation report. The trial judge announced that upon completion of the probation report a decision would be made as to whether or not defendant would be diverted.

In the probation report, it was recommended that this case not be diverted.3

On March 13, 1973, defendant appeared in court and represented to the trial judge that he was not an addict, did not take pills, did not smoke marijuana, and that ‘I [defendant] am trying to prove that I did not—I did not have marijuana in my possession at the time at all.’ The trial judge declared that ‘the probation officer recommends that this not be diverted. We won't divert it. We will put it back on the calendar and . . . we will set it for jury trial.’

Defendant was found guilty of possession of marijuana as charged in the information. Prior to sentencing, the trial judge ordered the matter referred to the probation department for possible probation and sentence. The court also raised the possibility of diversion should the Probation Department concur.4 A probation report was filed with the court which again recommended that this case not be diverted; however, probation was recommended, with terms and conditions which did not include imposition of a fine or imprisonment.5 Subsequently, defendant again appeared in court with counsel. During the discussion relative to the disposition of the case, the prosecuting attorney raised objections to diverting the case, after which the following colloquy took place:

‘[DEFENSE COUNSEL]: He—the defendant advises me that he has contacted some program, ‘Reach out,’ and he has given me a card her, which is in Monrovia, by the way. Does the Court wish to see this card?

‘THE COURT: Yes. Well, I think when they adopted this section, 1000 of the Penal Code, they established quite a precedent.

‘Well, the defendant has been found guilty of possession of marijuana.

‘Does the defendant consent to further proceedings under the diversion section, that is Penal Code section 1000 and the section following?

‘[DEFENSE COUNSEL]: Yes, he does.


‘[PROSECUTING ATTORNEY]: For the record, Your Honor, since the statute at least states the district attorney must concur, in this particular case—and this is the first time that we have done so—the People emphatically do not concur.6

‘THE COURT: All right. The Court will make a finding that it is its opinion, and I believe it is the opinion of the district attorney's office, that concurrence is not necessary with respect to the program to which the defendant is referred, and this matter is going to be, at the consent of the defendant—it will be diverted, and the defendant will be instructed forthwith to enroll and sign up with this Reach Out Youth and Drug Counseling Center [in Monrovia, California] . . ., and I wish to have a report in thirty days, a written report, filed by this defendant.’

The People pose two problems raised by the trial court's disposition of this case: (1) whether defendant was eligible for diversion after the verdict of guilty was entered against him; and (2) whether, in the absence of the prosecutor's concurrence the court exceeded it jurisdiction in granting the diversion. We conclude that under the circumstances defendant was eligible, and that the court did not exceed its jurisdiction.

Primarily, we must determine whether an appeal properly lies from an order diversion. Both parties concede that the order is appealable, although their concessions are premised upon different legal theories. The existence of an appealable order is a jurisdictional prerequisite. (6 Witkin, Cal.Proc. (2d ed.), Appeal, § 31, p. 4046.)

The ‘special proceedings' here involved are analogous to the civil commitment provisions relating to narcotic addicts (Welf. & Inst. Code, § 3000 et seq.) in that they provide a non-penal alternative to the criminal processes. The order for civil commitment (Welf. & Inst.Code, §§ 3050–3054) was specifically held to be a final judgment in a ‘special proceeding,’ and thus appealable. (People v. Murphy, 70 Cal.2d 109, 115, 74 Cal.Rptr. 65, 448 P.2d 945.)

Defendant contends that at the time Murphy was decided, former Code of Civil Procedure section 963 provided: ‘An appeal may be taken from a superior court in the following cases: 1. From a final judgment entered in an action, or special proceeding. . . .’ Defendant points to the absence of the term ‘special proceeding’ in the present section (Code Civ. Proc., § 904.1) as indicative of the fact that no appeal lies from an order granting diversion. We disagree. Section 904.1 of the Code of Civil Procedure provides that an appeal may be taken ‘from a superior court . . . (a) From a judgment, except (1) an interlocutory judgment . . . Insofar as former section 963 encompassed final judgments in special proceedings (People v. Murphy, supra), we see no reason to construe the word ‘judgment’ in section 904.1 more narrowly. (6 Witkin, Cal.Proc. (2d ed.), Appeal, § 55, pp. 4069–70.) Moreover, the judgment is final for the purposes of appellate review. (Lyon v. Goss, 19 Cal.2d 659, 669–670, 123 P.2d 11; 4 Witkin, Cal.Proc. (2d ed.), Judgment, § 7 et seq.)

The statutory scheme does not limit the application of diversion to any particular point of the criminal process:

Diversion is a legal term of relatively recent vintage, although the concept and practice of diversion is neither novel nor esoteric.7 For the purposes herein, the term envisions the non-criminal disposition of violations of the penal law, i. e., the practice by criminal-justice officials (police, prosecutors, and judges) of channeling out of the criminal process classes of offenders who, as a consequence of their probable guilt would otherwise be subject to the criminal process.

It is clear that sections 1000–1000.4 of the Penal Code Special Proceedings in Narcotic and Drug Abuse Cases (hereinafter, special proceedings) represent the intent of the Legislature to codify a means of diversion after the criminal process has begun. The statute provides: ‘This chapter shall apply whenever a case is before any court upon an accusatory pleading. . . .’ (Pen.Code, § 1000(a).) The specific issue before this court is the ascertainment of how far along in the criminal process the defendant may proceed before the special proceedings made available by sections 1000–1000.4 are foreclosed to him. The statute does no expressly resolve this point. The People point to the references in the statute to the preconditions of the waiver of the right to a speedy trial (Pen.Code, § 1000.1) and to a return to court for ‘arraignment and disposition as if he (defendant) had not been diverted’ (Pen.Code, § 1000.2) as indicative of the intent of the Legislature that diversion take place during the early stages of the accusatory process and certainly not after an adjudication of guilt. However, these references do not mandate that diversion be restricted to the early stages of the criminal process. They merely note that where a defendant is to be diverted prior to trial, it is necessary that a waiver of his right to a speedy trial be obtained. (Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1.) The reference to arraignment similarly is not dispositive of this matter, for an arraignment occurs after an adjudication of guilt (Pen.Code, § 1200), as well as before (Pen.Code, § 976 et seq.). The statute is applicable ‘whenever a case is before any court upon an accusatory pleading’ (Pen.Code, § 1000(a)). It is apparent from a reading of the statute as a whole that the Legislature through the references to ‘speedy trial’ and ‘arraignment’ is simply indicating that if diversion is not deemed suitable, of if the defendant fails to successfully complete the program, his case shall be disposed of as a regular criminal matter. The obtaining of defendant's waiver of his right to a speedy trial and the reference to arraignment, as the most, merely indicate that in the usual case the special proceedings will occur very early in the criminal process.

Since the precise time within which a defendant may be diverted is not specifically set forth in the statute, we look to the legislative policy affecting the subject (Byers v. Board of Supervisors of San Bernardino County, 262 Cal.App.2d 148, 68 Cal.Rptr. 549) as a recognized standard of construction for establishing the meaning of the statute. (People v. Navarro, 7 Cal. 3d 248, 273, 102 Cal.Rptr. 137, 497 P.2d 481; People v. Grubb, 63 Cal.2d 614, 620, 47 Cal.Rptr. 772, 408 P.2d 100.)

The enactment of sections 1000–1000.4 of the Penal Code clearly qualifies as remedial legislation. Under well-settled rules of judicial construction, such statutes are to be liberally construed to promote the general object to be accomplished. (Viles v. State of California, 66 Cal.2d 24, 31, 56 Cal.Rptr. 666, 423 P.2d 818; Calif. Grape, etc., League v. Industrial Welfare Com., 268 Cal.App.2d 692, 698, 74 Cal.Rptr. 313.) There appear to be two purposes attendant to the instant enactment. First, the statute has an obvious rehabilitative purpose. First-time drug users are often saddled with a millstone of a criminal record throughout their lives. This enactment seeks to give experimental or accidental drug users a second chance and to provide them with rehabilitative services outside of the criminal process.8 A second purpose for diversion is that it assists in relieving the congestion of our criminal courts by providing an alternative system of treatment and rehabilitation. We conclude that the overriding purpose, however, is to effect rehabilitation. The relieving of crowded court calendars is a collateral benefit which tends to be realized as a by-product of the process. We reach this result for a number of reasons.9 First, the sections of the Penal Code providing for diversion (§§ 1000–1000.4) comprise but a portion of a drug treatment bill enacted by the Legislature as a response to the burgeoning drug crisis facing the state today. The bill (Stat.1972, c. 1255, p. 2464 et seq., eff. Dec. 15, 1972) provides a multifaceted approach to the problem of drug abuse by means of education, prevention, treatment, research, program evaluation, and coordination. The emphasis of the approach is on treatment and services at the local level.

The determination that the dominant purpose of the diversion proceedings is rehabilitation is in conformity with other corrective efforts made on behalf of narcotic addicts. (Welf. & Inst.Code, § 3000 et seq.) The civil commitment program for narcotic addicts is expressly rehabilitative (§ 3000) and provides that the proceedings for commitment may be initiated after conviction (§ 3050). Moreover, upon successful completion of the program, the courts are empowered to discharge the defendant and to dismiss the original charges for which the defendant was convicted (§ 3200). To limit sections 1000–1000.4 of the Penal Code to the early stages of the criminal process would not provide as beneficial a system as is the diversion of narcotic addicts under the civil commitment provisions. We see no reason to distinguish between the obvious rehabilitation objective of the civil commitment and treatment program for narcotic addicts, and the treatment program envisioned for non-addicts.10 The failure to specifically provide the time at which diversion may occur should lend support to greater latitude in application, rather than of limitation. While it is generally agreed that diversion is most appropriate when used prior to trial, we have not been directed to, nor have we been able to find, any authorities with deem diversion inappropriate when used after trial. In somewhat similar efforts in other states, we note that the New York (Manhattan Court Employment Project) and District of Columbia (Project Crossroads) programs for diversion prior to trial are not statutory schemes, but rather, are informal programs operated on a triparte arrangement between the courts, the district attorney's office, and community service organizations.11 The informal structure of these arrangements operates to impose restrictions on the program not relevant to the California scheme.

We conclude that diversion under the California scheme may be accomplished at any time prior to sentencing. This conclusion finds support in reports emanating from the national level. The President's Commission on Law Enforcement and the Administration of Justice recommended diversion of those offenders in need of treatment for whom full criminal disposition does not appeal to be required. (Pres.Comm'n, Etc.—The Challenge of Crime in a Free Society, p. 134 (1971). A presidential task force on prisoner rehabilitation stated that ‘a prudent rule to follow for those wishing to conserve both human and fiscal resources, is that whenever an offender, especially a juvenile, can be diverted from going through the full criminal process without jeopardizing the safety of the community, he should be.’ (Task Force on Prisoner Rehab.—The Criminal Offender—What Should be Done, p. 22 (1970) (emphasis added). The conclusion appears inescapable that the diversion program was founded for the purpose of decriminalizing ‘simple possession of controlled substances' for first offenders who are otherwise good citizens so that their records will not be permanently marred by one act of indiscretion.

Having determined that the ‘special proceedings' do not of themselves limit the availability of diversion to any stage of the criminal process short of sentencing, we turn to the question of the necessity of the People's concurrence as a condition precedent to diversion.

We note that implementation of section 1000 is not discretionary with the district attorney. If the specific facts are determined to be existent, then the district attorney shall advise the defendant or his attorney of that determination. The sole statutory control sought to be applied on behalf of the district attorney is that of disposition, i. e., Penal Code section 1000.2. This is the very control which has been determined to be in violation of the separation of powers provision of our Constitution. It People v. Tenorio, 3 Cal.2d 89, 89 Cal.Rptr. 249, 473 P.2d 993 and Esteybar v. Municipal Court, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140, our Supreme Court held that the doctrine of separation of powers necessitated that the exercise of a judicial power not be made conditional upon the consent of the executive.12 Relative to the issue of concurrence of the prosecutor, were the sole question restricted to a determination of the breadth of judicial power over a case before a court, we would have no hesitancy in rejecting a contention of such a limitation of judicial function. As stated in People v. Navarro, supra, 7 Cal.3d 248, 258–260, 102 Cal.Rptr. 137, 143, 497 P.2d 481, 487:

‘Defining offenses and prescribing punishments (mandatory of alternative choices) are legislative functions designed to achieve legitimate legislative goals and objectives. The imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial function. [Citation.] Section 12 of the Penal Code recognizes that in its declaration that ‘The several sections of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed.’ The Legislature may impose restrictions upon the exercise of that function (i. e., mandatory consideration of probation report, reception of evidence in mitigation or aggravation of punishment, Pen.Code, §§ 1203d, 1204). It may limit the use of prescribed sanctions (sentences) to ‘unusual cases, wherein the interest of justice would best be served.’ This phrase, as used in section 3051, clearly implies that the determination whether this is such an unusual case is to be made by the sentencing judge. The section authorizes him to request the district attorney to investigate the facts relevant to the advisability of commitment in any case to which section 3052 applies. There is nothing to indicate that anyone other than the sentencing judge is to weigh these facts and whatever other facts or arguments might be presented at the hearing.

‘When an individual judge exercises sentencing discretion he exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him, and which is subject to review for abuse. (People v. Tenorio, supra, 3 Cal.3d 89, 95, 89 Cal.Rptr. 249, 473 P.2d 993.) Here, as in Tenorio and Esteybar [supra] the Legislature sought to vest the district attorney with unreviewable powers. It is irrelevant to the issue before us that the district attorney here fully stated reasons for his nonconcurrence. With or without a statement of reasons, the mere statement ‘I do not concur’ would have destroyed the judge's power to choose a sentencing alternative otherwise made available to him by the Legislature. The trial court correctly held that is was without power to review the district attorney's discretion. No guidelines are given by the Legislature for appellate review of the sentencing power here conferred independently and simultaneously on the court and the prosecutor—a power to be exercised after the sentencing court has judicially determined that the defendant, under the facts and the law, should be committed.

‘We reiterate the statement made by Justice Schauer in his dissent in People v. Sidener (1962) 58 Cal.2d 645, 654 [25 Cal.Rptr. 697, 702, 375 P.2d 641, 646], in his analysis of the separation of powers doctrine, that ‘It bears reiteration that the Legislature, of course, by general laws can control eligibility for probation, parole and the term of imprisonment, but it cannot abort the judicial process by subjecting a judge to the control of the district attorney.’

‘We therefore hold that that portion of section 3051 which requires the concurrence of the district attorney violates the California Constitution's requirement that the judicial power be vested in the judiciary and that the powers of government be separated into the executive, the legislative, and the judicial. (Art. VI, § 1; are. III.)

‘We find no merit in the argument that the section is valid because the court has no inherent power to commit to this particular treatment program. A similar argument was raised in Esteybar [supra]. We there held (5 Cal.3d p. 127, 95 Cal.Rptr. 524, 529, 485 P.2d 1140, 1145) ‘While it may be conceded that the Legislature in the first instance was not required to given the power to a magistrate to determine whether to hold a defendant to answer to a felony or a misdemeanor charge, having done so, the Legislature cannot condition its grant upon the approval of the district attorney.’ In People v. Clay, supra, 18 Cal.App.3d 964, 96 Cal.Rptr. 213, the same conclusion was reached as to a legislatively conferred power to grant probation. Here, too, although the Legislature was not required in the first instance to give the court power to commit persons in the status of Navarro to the treatment program, having conferred this power it cannot condition its exercise upon the approval of the district attorney.' (Fns. omitted.) However, we must consider another factor which may properly limit the power of the court to divert a defendant from the criminal process: i. e., that criminal matters must be expeditiously brought to trial. (Pen.Code, § 1050;13 People v. Superior Court, 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771.) Pretrial diversion necessitates the granting of a continuance. Holding the disposition of the criminal matter in abeyance while the defendant is attempting to comply with the conditions attendant to the diversion program necessarily inhibits the public policy for a speedy trial. Even assuming arguendo that this consideration requires that the prosecutor's concurrence be obtained where diversion is sought prior to trial, this consideration has no application to the granting of diversion after trial. For the accused, the guarantee of a speedy trial “serves a three-fold purpose. It protects the accused . . . against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of a crime; and . . . it prevents him from being ‘exposed to the hazard of a trial, after so great a lapse of time’ that ‘the means of proving his innocence may not be within his reach’—as, for instance, by the loss of witnesses or the dulling of memory.' [Citations.]' (Barker v. Municipal Court, 64 Cal.2d 806, 813, 51 Cal.Rptr. 921, 925, 415 P.2d 809, 813.) For the People, the public policy in favor of prompt disposition of criminal matters safeguards the state's interest in preserving evidence and generally seeing that the rights of the accused are respected. But, after trial, the state's interests which underpin the policy in favor of prompt disposition of criminal matters are merged in the rehabilatory or penal aspects. The safeguard provision making a probation and sentencing report a part of the ‘special proceedings' relative to diversion minimizes the chance of a miscarriage of justice resulting from a delay in the sentencing of defendant beyond that specified in Penal Code section 1191.14 Neither party has suggested, nor can we envision any chance of injury resulting from the delay (to which defendant consents) between the conclusion of the trial and the sentencing as a result of the ‘special proceedings.’ (See, people v. Ford, 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132.) Therefore, such a delay could not operate to prejudice the rights of either party. (People v. Williams, 24 Cal.2d 848, 850, 151 P.2d 244; People v. Cheffen, 2 Cal.App.3d 638, 642, 82 Cal.Rptr. 658; People v. Plaehn, 237 Cal.App.2d 398, 400, 46 Cal.Rptr. 872.)


In the instant case, the record indicates that prior to trial, both parties were disposed toward diversion as a legitimate alternative to further criminal proceedings. The only reason diversion was not granted was due to the recommendation of the Probation Department that defendant not be diverted, which was based on the belief of the department that it could not transfer defendant out of Los Angeles County to a rehabilitation program in San Diego County, where defendant lived and went to school. This disposition by the department was accompanied with the caveat that defendant ‘might be eligible for diversion.’ It does appear that at all stages of the proceedings defendant was a suitable candidate for diversion under the statutory guidelines and, in fact, met those guidelines.

The People have not raised the contention that defendant has failed to successfully complete the diversion program15 or that he has committed and been convicted of any criminal offense during the period of diversion such as would result in the resurrection of the criminal proceedings.

We conclude that the trial court did not exceed its jurisdiction in granting diversion, nor was it incorrect in its assessment that the prosecutor's concurrence in the instant case was unnecessary.

The judgment is affirmed.


1.  Penal Code, § 1000:‘(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for violation of Section 11500, 11530, 11555, 11556, 11910, or 11990 of the Health and Safety Code and it appears to the district attorney that all of the following apply to the defendant:‘(1) The defendant has no prior conviction for any offense involving narcotics or restricted dangerous drugs.‘(2) The offense charged did not not involve a crime of violence or threatened violence.‘(3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision.‘(4) The defendant has no record of probation or parole violations.‘(b) The district attorney shall review his file to determine whether or not paragraphs (1) to (4), inclusive, of subdivision (a) are applicable to the defendant.’

2.  Penal Code, section 1000.1(a) provides in pertinent part:‘(a) If the district attorney determines that this chapter may be applicable to the defendant, he shall advise the defendant or his attorney of such determination. If the defendant consents and waives his right to a speedy trial the district attorney shall refer the case to the probation department.’

3.  This probation report prepared prior to trial relative to the People's suggestion the defendant might be a suitable candidate for diversion states in pertinent part: ‘Furthermore, [defendant] . . . is a resident of San Diego County and facilities that might be available in that area are not known to the probation officer at this time. There is no indication that the defendant has contacted any agency and if he has, it would be impossible to supervise this defendant inasmuch as there appears to be no authority to transfer this case to San Diego.’ It is clear that the recommendation against diversion was not based upon a determination that defendant failed to meet the standards set forth in Penal Code, section 1000(a) or that he was not a ‘person who would be benefited by education, treatment, or rehabilitation.’ (Pen.Code, § 1000.1(a).)

4.  As to this suggestion by the trial court, neither party raised an objection, as shown by the transcript:‘THE COURT: This matter should be referred to the Probation Department, possible probation and sentence.‘Shall we also have him discuss the possibility of a diversion?‘[DEFENSE COUNSEL]: We have done that in this case already.‘THE COURT: The defendant refused to be diverted.‘[DEFENSE COUNSEL]: I don't know whether it was that or whether it was the officer that wrote the probation report. But at any rate, that has already been done. I suppose there would be no objection to that being done again.‘THE COURT: I think that this—in the probation report, I think the Probation Department should make another recommendation regard the possibility of diverversion.‘[PROSECUTING ATTORNEY]: As well as a recommendation regarding sentence if they oppose diversion.’

5.  The basis for the recommendation against diversion in this post-overdict report was founded on the fact that defendant was unable to furnish the department with verification of his involvement in a drug rehabilitation program. As evidenced by the recommendation against fine or imprisonment, the department's view of the defendant was that he was capable of making a ‘very satisfactory adjustment into a program of probation supervision.’ Since the defendant did present to the court a satisfactory program to allow him to be diverted, the sole basis of the department's recommendation was obviated.

6.  Penal Code, section 1000.2 provides in pertinent part:‘The court shall hold a hearing and, after consideration of the probation department's report and any other information considered by the court to be relevant to its decision, shall determine if the defendant consents to further proceedings under this chapter and waives his right to a speedy trial and if the defendant should be diverted and referred for education, treatment, or rehabilitation. The defendant's case shall not be diverted unless the district attorney concurs with the court's determination that the defendant be so referred though such concurrence is not necessary with respect to the program to which the defendant is referred. If the court does not deem the defendant a person who would be benefited by diversion, or if the district attorney or the defendant do not consent to participate, the proceedings shall continue as in any other case. . . .’

7.  See generally, R. Dawson, Sentencing: The Decision as to Type, Length, and Conditions of Sentence (1969); F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime (1969); Kaplan, The Prosecutorial Discretion—A Comment, 60 Nw.U.L.Rev. 174; W. LaFave, Arrest: The Decision to Take a Suspect into Custody (1966) (American Bar Foundation's Administration of Criminal Justice Series); Goldstein, Police Discretion Not To Invoke the Criminal Process, 69 Yale L.J. 543.

8.  Statements of State Senator George Deukmejian to the Members of the Legislature of the State of California, April 27, 1972; President's Commission on Law Enforcement and the Administration of Justice—The Challenge of Crime in a Free Society, 133–134; Note, Addict Diversion, 60 Georgetown L.Rev. 667, passim.

9.  In the absence of specific language in the statute resolving the issue herein, out problem is as aptly stated by Justice Cardoza in his work, ‘The Nature of the Judicial Process,’ when he said: ‘The difficulties of so-called interpretation arise when the legislature has had no meaning al all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.” (P. 15.)

10.  This is not to say that we are blind to the obvious penal aspects of an involuntary commitment program. Indeed, this facet of the program has often been cited as a major factor behind the low success rate these programs produce. As of December 1969, only 15.8 percent of the addicts who were committed to the California Rehabilitation Center and eligible for release under the time requirements of section 3200 of the California commitment statute were discharged. (California Rehabilitation Center, Civil Addict Program Effectiveness as Measured by Successful Discharges and Administrative Information Report 2 (1970) (includes addicts civilly committed, but majority are with criminal records); see Kramer & Bass, Institutionalization Patterns Among Civilly Committed Addicts, 208 J.A.M.A. 2297, 2298 (1969) (only one sixth of those placed on aftercare in the California program had remained continuously on parole for three years).)

11.  In New York's Manhattan Court Employment Project and the District of Columbia's Project Crossroads, and initial three month adjournment is requested in the case, during which time the nonaddict defendant receives counseling, social services, job referral, or training. (See National Comm'n for Children and Youth, Project Crossroads 11–33 (1971); Vera Institute of Justice, The Manhattan Court Employment Project, Summary Report on Phase One: Nov. 1, 1967–Oct. 3, 1969, at 14–51 (1970).To be eligible to participate in Project Crossroads, a defendant must be (1) between the ages of 16 and 26; (2) resident of the Washington, D. C. area; (3) unemployed, underemployed, or a school dropout; (4) charged with specified nonviolent crimes; (5) qualify for personal recognizance pretrial release under the criteria the D.C. Bail Agency; and (6) an adult first offender. All drug addicts, alcoholics, and defendants with serious psychological disorders are excluded. (Proj. Crossroads Report 2–3; see Vera Report, at 15–20.)A member of the Manhattan Court Employment Project's staff interviews those defendants who meet the program's objective criteria to see if they are candid and willing to cooperate and to get a ‘personal impression.’ Defendants who appear interested in the project only for its ability to get them out of jail are excluded. See Note, Addict Diversion, supra, 60 Georgetown L.Rev. 667.

12.  The office of the District Attorney is a part of the executive branch of government.

13.  Pen.Code, § 1050, in pertinent part:‘The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time, and it shall be the duty of all courts and judicial officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings. No continuance of a criminal trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance.’

14.  Penal Code, § 1191, in pertinent part:‘In the superior court, after a plea, finding or verdict of guilty, or after a finding or verdict against the defendant on a plea of a former conviction or acquittal, or once in jeopardy, the court must appoint a time for pronouncing judgment, which must be within 21 days after the verdict, finding or plea of guilty, during which time the court shall refer the case to the probation officer for a report if eligible to probation and pursuant to Section 1203 of this code; provided, however, that the court may extend the time not more than 10 days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment, and may further extend the time until the probation officer's report is received and until any proceedings for granting or denying probation have been disposed or.’

15.  It is of some note that the initial prosecutor concurred with the trial judge's recommendation that the defendant be again investigated to ascertain whether diversion would be suitable when the probation and sentence report was requested. It was upon the subsequent advent of a different prosecutor that this decision to support diversion, if the defendant met the statutory requisites, evaporated.

STEPHENS, Associate Justice.

KAUS, P. J., and HASTINGS, J., concur.