Opinion
H025732.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO CORREA, Defendant and Appellant.
On June 28, 2000, defendant Marco Correa was convicted by his pleas of the felony of possessing cocaine (count 1; Health & Saf. Code, § 11350, subd. (a)), and of the misdemeanors of being under the influence of cocaine (count 2; Health & Saf. Code, § 11550, subd. (a)), of driving under the influence of alcohol (count 3; Veh. Code, § 23152, subd. (a)), and of driving with a suspended license (count 5; Veh. Code, § 14601.2). Defendant also admitted two prior convictions of driving under the influence.
Pursuant to the negotiated plea, on June 28, 2000, defendant was entered in the deferred entry of judgment (DEJ) program for the cocaine offenses "for the term prescribed by law." On the other counts he was placed on probation for three years. Among his probation conditions were serving six months in the county jail, submitting to chemical testing, and avoiding alcohol. The court stated, "we will use the R. C. P. program phases one and two to satisfy diversion."
Almost 12 months later, the trial court congratulated defendant for being clean and sober and pronounced defendant free from further court review hearings. Two and one-half months later, defendant was arrested for a sex offense. Sixteen and one-half months later, the trial court entered the deferred judgment against defendant, later sentencing him to two years in prison.
On appeal defendant contends that he earned dismissal of the charges against him by his satisfactory performance in the DEJ program. Accordingly, the trial court lacked jurisdiction to enter the deferred judgment when it did. For the reasons stated below, we will affirm the judgment.
PROCEEDINGS
After defendant was placed in the DEJ program on June 28, 2000, he appeared bimonthly for six court hearings. On June 6, 2001, Judge Terry of the Santa Clara County Superior Court noted defendants successful graduation from the R. C. P. program and his participation in A/A meetings. The judge stated, "I have such a positive report for Mr. Correa that Im going to make this your last review. . . . You do not have to report, return to court for any further reviews. Keep in touch with your probation officer." The minute order for that day stated, "DEJ deemed satisfied."
On August 21, 2001, defendant was arrested for violating Penal Code section 288, subdivision (a). The Santa Clara County Probation Department notified him that he was in violation of probation for this new offense and for other reasons. A probation violation hearing was scheduled for October 11, 2001.
The matter was continued on October 11, 2001. On October 25, 2001, defendant appeared and asked for another continuance in light of the new pending charges. Judge Bernadini stated: "Was it an 11350 dropped? [`]DEJ deemed satisfied.[] Must have been on the 11350. So were here on the misdemeanor? Yeah. They just show a misdemeanor. Its just the docket ending case and the 11350. But it looks like Judge Terry may have deemed the DEJ satisfied because the defendant did RCP. Thats what it looks like and that would be just like Judge Terry to do that." The court revoked defendants probation and continued the case until January 4, 2002.
Thereafter the case was continued several times. Before a hearing on February 14, 2002, the Substance Abuse Unit of the Probation Department filed an undated memorandum asking the court to terminate the deferred entry of judgment, to enter judgment, and to sentence defendant. The hearing on that date was continued.
On September 17, 2002, defendant was convicted after court trial in a different case of two counts of forcible lewd acts with a child. (Pen. Code, § 288, subd. (b)(1).)
Finally, on January 9, 2003, the court entered the deferred judgment in this case. On February 6, 2003, defendant waived a formal probation report and time for sentencing. The court sentenced defendant to two years in prison in this case. On the same date, defendant was sentenced to 16 years in prison for his lewd acts.
DID THE COURT HAVE JURISDICTION TO ENTER DEFERRED JUDGMENT?
On appeal defendant argues that "[s]ince the court, prosecutor, and probation all recognized that [defendant] satisfied his DEJ, the charges should have been dismissed. (§ 1000.3). According[ly], the court did not have the power to enter judgment and sentence [defendant] to state prison."
In re Scoggins (2001) 94 Cal.App.4th 650 contains a helpful summary of the statutes pertaining to the deferred entry of judgment. "The deferred entry of judgment statutes, section 1000 et seq., provide that first time drug offenders who meet specified conditions `bypass the normal criminal process and enter a drug treatment program. (Terry v. Superior Court (1999) 73 Cal.App.4th 661, 663-664.) The conditions include, among other things, no prior drug convictions and no recent felony convictions. (§ 1000, subd. (a)(1), (6).) Under deferred entry of judgment provisions, the court can accept a guilty plea and defer entry of the judgment of conviction pending the defendants attempt to successfully complete a drug rehabilitation program. (§ 1001.1, subd. (b) [`If the court determines that it is appropriate, the court shall grant deferred entry of judgment if the defendant pleads guilty to the charge or charges and waives time for pronouncement of the judgment].)
"The court may defer judgment from 18 months to three years, during which time it receives progress reports regarding the defendants participation in a rehabilitation program. (§ 1000.2.) If the defendant performs satisfactorily throughout the rehabilitation program, then the criminal charge is dismissed, and disclosure of the defendants arrest record is strictly limited. (§§ 1000.3, 4th par., 1000.4.) `[W]ith limited exceptions, the defendant need never reveal [he] was even arrested, let alone that [he] was charged with a felony, pleaded guilty, and was granted a deferred entry of judgment. (People v. Mazurette (2001) 24 Cal.4th 789, 793.)" (Id. at p. 654.)
Section 1000.3 describes the two possible outcomes of the deferred entry of judgment program, stating in part: "If it appears to the prosecuting attorney, the court, or the probation department that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or that the defendant is convicted of a misdemeanor that reflects the defendants propensity for violence, or the defendant is convicted of a felony, or the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the prosecuting attorney, the court on its own, or the probation department may make a motion for entry of judgment.
"After notice to the defendant, the court shall hold a hearing to determine whether judgment should be entered.
"If the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or the court finds that the defendant has been convicted of a crime as indicated above, or that the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code.
"If the defendant has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period, the criminal charge or charges shall be dismissed."
Defendant argues alternatively that the charges against him were "essentially dismissed" on June 6, 2001, or that "he was entitled to dismissal of the criminal charges" before the court entered the deferred judgment against him on January 9, 2003.
Although the minute order of June 6, 2001 states "DEJ deemed satisfied," this was not exactly what Judge Terry said. Judge Terry simply freed defendant from further bimonthly court review hearings. Since defendant was admitted to the DEJ program on June 28, 2000, the charges against him could not be dismissed until at least 18 months later, on December 29, 2001. Section 1000.2 states in part: "The period during which deferred entry of judgment is granted shall be for no less than 18 months nor longer than three years. Progress reports shall be filed by the probation department with the court as directed by the court."
After June 6, 2001, defendants participation in the DEJ program was subject to a lower level of judicial scrutiny, but what happened on that date did not amount to a dismissal of the charges against him. Section 1000.1, subdivision (a)(3) states in part: "upon the defendants successful completion of a program, . . . the positive recommendation of the program authority and the motion of the prosecuting attorney, the court, or the probation department, but no sooner than 18 months and no later than three years from the date of the defendants referral to the program, the court shall dismiss the charge or charges against the defendant." The June 6, 2001 hearing was too early for the charges to be dismissed and there was no motion to dismiss them.
This is also true of the hearing on October 25, 2001. Judge Bernadinis comments about the DEJ being deemed satisfied simply reflect her review of this prior minute order. Any motion or order to dismiss the charges would have been premature on that date. The judges comments do not purport to be an order of dismissal.
Defendant does not contend that the charges against him were ever actually dismissed, only that he was entitled to their dismissal on December 28, 2001, 18 months after his entry into the DEJ program. The problem with this contention is that prior to that date, namely on August 21, 2001, there was evidence in the record that "defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment." (§ 1000.3.) With such evidence, a motion to dismiss the charges against defendant would have failed. Based on such evidence, upon a noticed motion the court was authorized to enter a judgment of defendants guilt and sentence him.
We conclude that since the charges against defendant had not been dismissed under the DEJ statutes when information of new criminal conduct by defendant came to light, the trial court retained the authority to enter the deferred judgment as it did.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WUNDERLICH, J., MIHARA, J. --------------- Notes: Unspecified section references are to the Penal Code.