Perez

Gabriel Perez (Perez) appeals an order granting Perez deferred entry of judgment under Penal Code 1 section 1000 following his guilty plea to one count of possession of cocaine, a controlled substance (Health & Saf. Code, § 11350, subd. (a)). 2 Perez contends the trial court erred by denying his motion for application of section 1000 as it existed on *349 the date of his 1996 offense rather than as it existed on the 1997 date of the filing of the complaint. He argues the amendments to section 1000 effective January 1, 1997, should be interpreted to apply prospectively to offenses committed on and after January 1, 1997, not retrospectively to offenses committed prior to 1997. He further argues that application of the 1997 amendments to pre-1997 offenses would violate the constitutional prohibition against ex post facto laws. We conclude that as a matter of statutory interpretation the January 1, 1997 amendments to section 1000 apply to offenses committed only on or after January 1, 1997. We therefore reverse the order and remand the matter with directions that Perez be permitted to withdraw his guilty plea and be considered for diversion under the pre-1997 amendment form…

I concur in the result. However, I write separately bécause the majority’s excursion into constitutional analysis is both unnecessary and contrary to applicable precedent.

This case can be resolved by applying the well-established principle that statutes are presumed to operate prospectively absent an express legislative declaration to the contrary. The majority opinion does so at page 353 and I agree. That should be the end of the matter. However, the majority go farther by concluding retroactive application of amended Penal Code 1 section 1000 et seq. here would violate the constitutional prohibition against ex post facto laws by increasing Perez’s punishment. Specifically, citing People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59 [ 113 Cal.Rptr. 21 , 520 P.2d 405 ], the majority view diversion as a specialized form of “an alternative form of punishment,” to wit, probation.

The majority’s reliance on People v. Superior Court (On Tai Ho), supra, 11 Cal.3d 59 , is misplaced. Although containing language referring to diversion as a specialized form of probation, which itself is an alternative form of punishment, On Tai Ho did not address the issue of the distinction between…

McDONALD, J.

Gabriel Perez (Perez) appeals an order granting Perez deferred entry of judgment under Penal Code [1] section 1000 following his guilty plea to one count of possession of cocaine, a controlled substance (Health & Saf.Code, § 11350, subd. (a)). [2] Perez contends the trial court erred by denying his motion for application of section 1000 as it existed on the date of his 1996 offense rather than as it existed on the 1997 date of the filing of the complaint. He argues the amendments to section 1000 effective January 1, 1997, should be interpreted to apply prospectively to offenses committed on and after January 1, 1997, not retrospectively to offenses committed prior to 1997. He further argues that application of the 1997 amendments to pre-1997 offenses would violate the constitutional prohibition against ex post facto laws. We conclude that as a matter of statutory interpretation the January 1, 1997 amendments to section 1000 apply to offenses committed only on or after January 1, 1997. We therefore reverse the order and remand the matter with directions that Perez be permitted to withdraw his guilty plea and be considered for diversion under the pre-1997 amendment…