Ochoa

After the trial court denied his motion to defer entry of judgment (Pen. Code, § 1000 et seq.), defendant Oscar Armando Ochoa pled guilty to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)) and using it (Health & Saf. Code, § 11550, subd. (a)). Thereafter, defendant was placed on probation pursuant to Proposition 36. (Pen. Code, § 1210.1.)

On appeal, defendant contends the court erred in finding that his January 2006 conviction under Health and Safety Code section 11357, subdivision (b)—occurring more than two years before the current February 2008 offenses—rendered him ineligible for deferred entry of judgment under Penal Code section 1000. The People concede the error and we agree.

In contrast to Proposition 36, which applies following conviction and to a slightly different category of cases, Penal Code section 1000 applies at the accusatory pleading stage. It provides that a defendant who has been charged with specified drug offenses and has not committed a crime of violence or threatened violence may undergo a drug education and treatment program in lieu of undergoing a criminal prosecution, and upon satisfactory completion may obtain dismissal of the…