(Super. Ct. No. 09F00730) APPEAL from a judgment of the Superior Court of Sacramento County, Gary E. Ransom, Judge. Reversed.
The opinion of the court was delivered by: Cantil-sakauye,j.
CERTIFIED FOR PUBLICATION
This case presents the question of whether a criminal defendant granted deferred entry of judgment under Penal Code section 1000 et seq.,*fn1 may be terminated from such diversion based solely on her inability to pay the fees of the program to which she has been referred. The answer is no. We shall reverse the judgment and remand for further proceedings.
Defendant Anita Marie Trask was charged with possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), and false impersonation of another in violation of section 529.3.*fn2 Defendant entered a nolo contendere plea to the section 11377, subdivision (a) charge and the remaining charge was dismissed on the motion of the prosecution. Defendant was granted deferred entry of judgment (diversion) under the provisions of section 1000 et seq.
Defendant reported to the probation department and was assigned to attend the National Council on Alcoholism and Drug Dependence, Inc. (NCADD) drug diversion program. Defendant attempted to enroll in the NCADD program, but could not afford the intake fee or the monthly payments for the program. She filed a motion for a grant of diversion at no cost or an alternative approved program at no cost. By an amended motion, defendant sought assignment to a no cost diversion program or a fee waiver for an approved program.
In support of her amended motion, defendant submitted her own declaration as well as a declaration from her appointed public defender.
In her declaration, defendant stated she is a single mother with five minor children, ranging in age from 3 years old to 14 years old. Her only current source of income is Social Security. She is often homeless. When she went to probation to sign up for diversion, she was assigned to take the NCADD program. Defendant spoke with a person at NCADD about enrollment. Defendant was told the intake fee could only be reduced to $75, that defendant could not make installment payments on the intake fee and that she would have to make monthly payments on the program cost. Defendant expressed her willingness to take another drug program. She declared she is a Certified Registered Nurse Assistant in South Dakota, where her mother lives, and she has a job waiting for her in that state once this case resolves. She will lose her occupation if she has a drug charge on her record.
Defendant's counsel stated in her declaration that she had verified defendant's willingness and efforts to participate in the diversion program. Counsel contacted an office assistant at the diversion division of the county probation office to determine if defendant could get into a program at no cost. Counsel was advised that defendant had been told to sign up with NCADD. When defense counsel called NCADD, she spoke with a drug counselor, the same counselor who spoke with defendant when defendant went in for intake. The drug counselor informed defense counsel of the intake fee and required monthly program payments. The counselor informed defense counsel that there was no fee waiver available. The counselor suggested two programs that might pay defendant's intake fee, but later investigation showed defendant was not eligible because of this pending felony case. Defense counsel then contacted a probation officer who informed counsel that there were no free diversion drug programs offered because the city (counsel believed the officer meant the county) was broke and no longer had any programs to which clients could be referred.
Two hearings were held on defendant's motion for a no cost diversion program or fee waiver. At the first hearing, the prosecution orally opposed defendant's motion and the trial court indicated it would deny diversion. At the second hearing, defense counsel confirmed again that there were no free diversion programs currently offered and asked the court to expressly find defendant had no ability to pay. The court found defendant has an "inability to pay[,]" but "denied the diversion" with the advice to "[t]ake it up." The court stated the issue for appeal as "does the county have to provide a program for people who cannot afford to pay--who prove they cannot afford to pay for diversion?"
Defendant tried to "take it up," but we dismissed her appeal as being from a non-appealable order. (People v. Trask (March 11, 2010, C064336, citing Butler v. Superior Court (1998) 63 Cal.App.4th 64, 69).)
The trial court then terminated defendant from diversion, reinstated criminal proceedings, and placed defendant on formal probation for three years, conditioned, among other ...