Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF090002.
HOCH, J.
Defendant Shannon Lynn Altrock, who had been granted deferred entry of judgment (diversion) under Penal Code section 1000 et seq., was terminated from such diversion based on her inability to pay the fees of the program to which she had been referred.
Undesignated statutory references are to the Penal Code.
On appeal, she contends her termination from diversion for this reason violated the applicable statutory scheme and is unconstitutional. The People agree termination was improper. We agree and reverse the judgment and order. (People v. Trask (2010) 191 Cal.App.4th 387, 394-397 (Trask).)
BACKGROUND
Defendant entered a negotiated plea of no contest to possessing hydrocodone (Health & Saf. Code, § 11350), and was granted diversion under the provisions of section 1000 et seq. in February 2009.
The trial court ordered defendant to report to the probation department and to enroll in and complete a certified drug diversion program and pay $235 in fines. Three months later, defendant’s probation officer reported that she was “doing well, ” had “been making monthly payments, ” and had tested negative for drug use, but she had not yet enrolled in a residential treatment program.
At a diversion review hearing in December 2009, the trial court noted that defendant had no positive drug test results, but she had neither enrolled in the required classes nor paid any fees or fines. Since defendant’s living arrangement had “become stabilized, ” the court hoped she would focus on fulfilling those requirements.
In anticipation of a March 2010 diversion review hearing, the probation department reported to the trial court that defendant had failed to attend or complete a drug diversion program and it urged the court to find her in violation of the diversion order.
At the hearing on her alleged violation of the diversion order, defendant testified she had planned and agreed to complete an approved drug counseling program. She had chosen the least expensive one, which cost $220, because it was the only program that allowed installment payments of between $10 to $20 each week, payable before each weekly class. Defendant testified she attended five classes, but then could not afford to make the payments and ultimately stopped going to class because she could not pay. She has continued her job search, but had not worked in the last 18 to 20 months.
Defendant submitted a two-page written summary of her monthly income and expenditures between February 2009 and April 2010. She testified that during this period her only income was $200 or less per month in food stamps, plus small amounts she occasionally earned from babysitting, house cleaning or selling personal property, and a $20 birthday gift she received from her grandfather. She spent $40 for drug counseling classes in or about April 2009, and small sums on toiletries and bus fare; “all other clothes and items acquired in this time were given to me by friends and family members, or from the Crossroads Church clothes closet ministry.” Moreover, she was homeless during this period, and had recently been sleeping on her grandfather’s living room floor.
When defendant contacted the probation department to say she could no longer make the payments for the drug counseling classes, they told her to “[h]urry up, find a job, come up with the money, pay it somehow.”
Defendant indicated in response to the trial court’s questions that she had been a smoker until recently, but rarely bought cigarettes because “my mom and [a] friend of mine would purchase my cigarettes for me. The only time I bought the cigarettes for myself was on my birthday.
“The Court: Those who bought the cigarettes for you would buy you cigarettes but wouldn’t give you money to pay for the [drug] program so you could stay out of jail?
“[Defendant]: My mom has given me as much money as she can afford to give me for
“The Court: Cigarettes.
“[Defendant]: -- my classes.”
After defendant argued briefly that she wanted to continue the diversion program, but needed some time to find employment, the trial court found her in violation of the diversion order. The court explained, it “[a]lways bothers me that people seem to manage to find their way to get into drugs, but then they don’t have any money to pay for a program that can help them stay out of trouble like drugs. I don’t find your argument to be persuasive, nor necessarily credible. [Counsel], in light of what has been written out that constitutes Defendant’s A in evidence [her income and expense summary], the court will find that the defendant has failed out of the... drug diversion program.”
After the trial court terminated defendant from diversion, it reinstated criminal proceedings and placed her on formal probation for three years, conditioned (among other things) on service of 84 days in county jail.
DISCUSSION
Defendant contends the trial court erred in failing to conduct a hearing on her ability to pay the costs associated with the drug diversion program contemplated by section 1000, and abused its discretion in terminating her without evidence she willfully failed to complete the program. The People concede the trial court erred and we agree.
Sections 1000 through 1000.4 “‘authorize the courts to “divert” from the normal criminal process persons who are formally charged with first-time possession of drugs... and are found to be suitable for treatment and rehabilitation at the local level. The purpose of such legislation... is two-fold. First, diversion permits the courts to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction. Second, reliance on this quick and inexpensive method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions and thus enables the courts to devote their limited time and resources to cases requiring full criminal processing.’ [Citation.]” (People v. Orihuela (2004) 122 Cal.App.4th 70, 72.)
These provisions contemplate fee exceptions for those otherwise eligible candidates who cannot pay. Section 1000, subdivision (c), provides in pertinent part: “All referrals for deferred entry of judgment granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective.” Section 1211 provides minimum requirements for a drug diversion program to be certified for purposes of section 1000: among the requirements is “[f]ee exemptions for persons who cannot afford to pay.” (§ 1211, subd. (a)(4).)
Section 1000.3 sets forth the grounds for termination of diversion; an inability to pay is not among them. “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 defendant’s 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.” (§ 1000.3, italics added.)
As this court recently explained in Trask, supra, 191 Cal.App.4th 387, the foregoing statutory scheme does not permit termination of diversion based solely on a defendant’s inability to pay. (Id. at p. 397.)
In Trask, the defendant was found eligible, granted diversion under section 1000, and assigned to participate in an approved drug education program, but her only source of income was social security and she was frequently homeless. (Trask, supra, 191 Cal.App.4th at p. 392.) She wanted to participate in the drug diversion program, and sought a no-cost diversion program or fee waiver, but the court instead terminated her from diversion. (Id. at pp. 393-394.)
We concluded in Trask that the trial court erred in terminating the defendant’s diversion after it became clear she could not pay the required fees, because the statute does not identify the inability to pay as a ground for termination. (Trask, supra, 191 Cal.App.4th at p. 396.) “Such ground is not only absent from section 1000.3, it is inconsistent with the statutory scheme as a whole. Nothing in the statutes suggests a defendant’s ability to pay is a consideration for eligibility or completion of diversion. In fact, the opposite can be inferred. Section 1000, subdivision (c), expressly limits defendants referred for deferred entry of judgment to either ‘programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective.’ That is, the defendant must be referred to an approved free drug diversion program or to a certified drug diversion program. Certified programs are required to include fee exemption provisions for persons who cannot pay. (§ 1211, subd. (a)(4).) Either way, section 1000, subdivision (c) accommodates the indigent defendant.” (Id. at pp. 396-397.)
Here, the trial court found, “in light of” defendant’s written statement of income and expenses (which illustrated her inability to pay) that she “failed out of the... drug diversion program.” As in Trask, supra, 191 Cal.App.4th 387, the court terminated defendant’s diversion when it appeared she was not able to pay the fees associated with the approved drug diversion program.
Under these circumstances, no different result is compelled by the fact that the court said it did not find defendant’s argument “necessarily credible.” The trial court did not indicate what aspect of defendant’s argument it found not “necessarily credible” or how a possible lack of credibility affected its determination to terminate defendant from the deferred entry of judgment program.
The plain language of section 1000.3 provides for termination of diversion only when the defendant (1) is performing unsatisfactorily in the assigned program, (2) is not benefiting from education, treatment, or rehabilitation, (3) has been convicted of a misdemeanor that reflects defendant’s propensity for violence or a felony, or (4) has engaged in criminal conduct rendering him or her unsuitable for diversion. (§ 1000.3.) Nothing in the record suggests defendant was not performing satisfactorily, that she was not benefitting from education, treatment, or rehabilitation, or that she had been convicted of any crime or engaged in any further criminal conduct. Accordingly, there was no statutory basis for terminating her diversion, and the trial court’s action was an abuse of discretion.
DISPOSITION
The judgment of conviction, along with the order terminating defendant’s deferred entry of judgment, is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
We concur: RAYE, P. J., HULL, J.