Butler v. Sup. Ct. of Los Angeles Cty.

*66 Opinion

I. Introduction

Defendant, Wayne Keith Butler, had filed a mandate petition challenging the correctness of the respondent court’s determination that he was ineligible for deferred entry of judgment within the meaning of Penal Code 1 section 1000 et seq. because there were allegations he was a recidivist. We conclude the. express language of section 1000, subdivision (b) permits appellate review of a determination an accused drug offender is not eligible for deferred entry of judgment only on direct appeal after a conviction. We therefore deny the petition and vacate the stay of proceedings.

II. Procedural and Factual Scenario

Defendant was charged in an information with cocaine possession in violation of Health and Safety Code section 11350, subdivision (a). It was also alleged in the information that defendant had previously been convicted of the serious felonies of robbery (§ 211), rape (§ 261, former subd. (2)), and forcible oral copulation (§ 288a). Because of the three prior serious convictions, it was further alleged that he was subject to enhanced sentencing pursuant to sections 667, subdivisions (b) through (i) and 1170.12. Well prior to trial, defense…

I concur in the majority’s conclusion that petitioner’s sole remedy for challenging the finding that he was ineligible for deferred entry of judgment is by postconviction appeal. (Pen. Code, § 1000, subd. (b).)

I write separately, however, to emphasize it remains an open question whether the trial court properly denied petitioner’s request for deferred entry of judgment since petitioner arguably meets the statutory criteria. First, there is no evidence petitioner has suffered any prior controlled substance convictions. (§ 1000, subd. (a)(1).) Second, there is no evidence the alleged current offense involved violence. (§ 1000, subd. (a)(2).) Third, the alleged current offense involved no other controlled substances besides the cocaine at issue. (§ 1000, subd. (a)(3).) Fourth, there is no indication petitioner has previously failed probation or parole. (§ 1000, subd. (a)(4).) Fifth, there is no evidence he has participated' in a drug diversion or deferred entry of judgment program in the last five years. (§ 1000, subd. (a)(5).) And sixth, there is no indication he has been convicted of any felony in the last five years. (§ 1000, subd. (a)(6).)

Despite seemingly satisfying the…

William Woods for Real Party in Interest.

OPINION

TURNER, P.J. —

Defendant, Wayne Keith Butler, had filed a mandate petition challenging the correctness of the respondent court's determination that he was ineligible for deferred entry of judgment within the meaning of Penal Code [1] section 1000 et seq. because there were allegations he was a recidivist. We conclude the express language of section 1000, subdivision (b) permits appellate review of a determination an accused drug offender is not eligible for deferred entry of judgment only on direct appeal after a conviction. We therefore deny the petition and vacate the stay of proceedings.

Defendant was charged in an information with cocaine possession in violation of Health and Safety Code section 11350, subdivision (a). It was also alleged in the information that defendant had previously been convicted of the serious felonies of robbery (§ 211), rape (§ 261, former subd. (2)), and forcible oral copulation (§ 288a). Because of the three prior serious convictions, it was further alleged that he was subject to enhanced sentencing pursuant to sections 667, subdivisions (b) through (i) and 1170.12. Well prior to trial, defense…