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Court of Appeal, First District, Division 4, California.

Kenneth A. MORSE, Petitioner, v. The MUNICIPAL COURT FOR the SAN JOSE-MILPITAS JUDICIAL DISTRICT, COUNTY OF SANTA CLARA, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 34239.

Decided: February 22, 1974

Sheldon Portman, Public Defender, Philip H. Pennypacker, Deputy Public Defender, San Jose, for petitioner. Evelle J. Younger, Atty. Gen. of Cal. Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Thomas W. Condit, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.

Kenneth Morse is under charge of possessing marijuana (Health & Saf.Code, § 11357). He seeks mandate to compel the municipal court to take proceedings which may lead to his diversion from the processes of the criminal courts under Penal Code section 1000 et seq.1

At petitioner's arraignment on July 30, 1973, he was informed by the district attorney that he met the initial eligibility requirements for diversionary treatment pursuant to Penal Code section 1000. Petitioner was then entitled, as provided by section 1000.1, to consent to diversion, whereupon further proceedings would have been taken which might have led to an order referring petitioner to a diversionary program. Petitioner did not consent to diversionary treatment; instead he pleaded not guilty and moved under Penal Code section 1538.5 to suppress the incriminating evidence. The municipal court took evidence on the motion a few days later; the motion was denied.

Thereafter, petitioner advised the court that he wished to consent to diversion. The prosecutor resisted this proposal on the ground that petitioner had already elected not to accept diversion. At the same time the prosecutor announced his intention to withhold his consent to diversion even if, after considering a probation report as provided in section 1000.2, the court determined that diversion was appropriate. The municipal court denied diversion and petitioner sought a writ of mandate from the superior court. The superior court denied relief, determining that petitioner had not consented to diversion as allowed by the statute.

The order of the superior court denying petitioner any relief was an appealable order. (Hankla v. Municipal Court (1972), 26 Cal.App.3d 342, 351, 102 Cal.Rptr. 896.) An appellate court will generally not grant relief on a petition for a writ where the same relief could have been sought by an appeal. But the delays attendant upon an appeal would be harmful to these parties and to the public interest. It is therefore appropriate to exercise our function of review by means of this writ proceeding. (See Moore v. Municipal Court (1959), 170 Cal.App.2d 548, 553–554, 339 P.2d 196.) If petitioner is still eligible for diversion, he is entitled to a writ of mandate to compel the prosecutor and the court to take proceedings which would lead to a determination under terms of the statute. (See Hollman v. Warren (1948), 32 Cal.2d 351, 355, 196 P.2d 562.) Petitioner contends that Penal Code section 1000 et seq. is unconstitutional insofar as it enables the prosecutor to prevent diversion by withholding his consent. (See People v. Navarro (1972), 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481; Esteybar v. Municipal Court (1971), 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140; People v. Tenorio (1970), 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.) We do not reach this issue, because the proceedings in the municipal court never moved to the point where the prosecutor was called upon to concur in the court's determination that petitioner should be ‘diverted and referred for education, treatment, or rehabilitation.’ (Pen.Code, § 1000.2.)

Petitioner argues that once the district attorney has determined that the defendant may be eligible for diversion, he comes under a continuing statutory duty to refer the case to the probation department if the defendant waives his right to speedy trial and at some later stage of the criminal proceedings consents to diversion. It is true that although the statute requires waiver of speedy trial as a condition of eligibility it does not refer to waiver of any other procedural step. Petitioner contends that all other procedural rights may be reserved. If this contention were sound a defendant could exercise discovery, move to suppress evidence, seek a change of venue, and pursue other strategic moves including, perhaps, awaiting a jury verdict, and at any time interrupt the criminal proceedings by consenting to diversion whenever he considered that matters were not going forward favorably. The language of the statute does not suggest that the Legislature intended to create so clumsy a procedure.

In denying diversion, the judge of the municipal court declared: ‘I think the diversion program is designed to avoid utilization of the criminal justice system and the defendant actually utilizes that when he files his motions.’ We have concluded that this interpretation was correct. The requirement that the district attorney advise the defendant that he is eligible for diversion is followed immediately by the provision giving the defendant the option of consenting. (Pen.Code, § 1000.1.) Moreover, Penal Code section 1000.2 provides: ‘. . . If the defendant is arrested and convicted of any criminal offense during the period of diversion, the case for which he has been diverted shall be referred to the court for arraignment and disposition as if he had not been diverted and the case is a regular criminal matter.’ (Emphasis added.) The reference to arraignment suggests that a defendant who is or may be ‘diverted’ is a person who has not yet been arraigned, and that the Legislature meant to offer an alternative treatment to the first-time drug offender before the arraignment involves him in the criminal process.

The alternative writ is discharged and the petition is denied.


1.  § 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 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 of 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.

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and RATTIGAN, J., concur.

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