Appeal from a judgment of the Superior Court of Orange County, Erick L. Larsh and Theodore R. Howard, Judges. (Super. Ct. No. 09CF3119)
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Defendant James Orozco pleaded guilty to possessing cocaine and
driving under the influence of alcohol. The court sentenced him to 60
days in jail and three years of probation for driving under the
influence of alcohol, but granted him deferred entry of judgment under
Penal Code section 1000 et seq. for possessing cocaine.*fn1
To satisfy the deferred entry of judgment requirements,
defendant enrolled in, but was eventually terminated from, a section
1000 drug treatment program. He moved to be reinstated in the
program. The court (a different judge) denied defendant's motion on
two alternative grounds: (1) defendant's drunk driving violation
rendered him ineligible under section 1000, subdivision (a)(3)
(section 1000(a)(3)) for deferred entry of judgment on the cocaine
possession charge; and (2) defendant had performed unsatisfactorily in
the drug treatment program by failing too long to enroll and
participate in a timely way.
We hold the court misinterpreted section 1000(a)(3). That subdivision disqualifies a defendant for deferred entry of judgment if he or she has violated (in addition to the crime eligible for deferred entry of judgment) an ineligible offense related to "narcotics or restricted dangerous drugs . . . ." As used in section 1000(a)(3), alcohol is neither a "narcotic" nor a "restricted dangerous drug . . . ." Nonetheless, we affirm the judgment because the court properly terminated defendant's deferred entry of judgment under section 1000.3 for unsatisfactory performance in the assigned drug treatment program. Finally, because defendant was eligible for deferred entry of judgment in the first instance, we do not address his contention that he must be given an opportunity to withdraw his guilty plea.
On August 20, 2010, before Judge Theodore R. Howard, defendant pleaded guilty to cocaine possession (Health & Saf. Code, § 11350, subd. (a)), driving under the influence of alcohol with a blood alcohol level of at least .08 percent (Veh. Code, § 23152, subds. (a) & (b)), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)).*fn2 In exchange, he was sentenced, as to the cocaine possession charge, to deferred entry of judgment pursuant to section 1000, and, as to the Vehicle Code counts, to three years of informal probation on condition he serve 60 days in county jail. The court ordered defendant to submit proof of enrollment in a section 1000 drug treatment program by September 20, 2010,*fn3 and to submit proof of completion of the program on March 21, 2011. Assuming defendant completed these two requirements, a hearing would be held in February 2012 for the dismissal of the cocaine possession charge.
The court stayed defendant's jail sentence for eight weeks, until October 8 (assuming he was not accepted and enrolled in home confinement), to give him time to enroll in a drug treatment program.
On September 20, the court granted defendant an extension of time to submit proof of enrollment in a drug treatment program.
On October 4, Judge Erick L. Larsh granted defendant another extension of time to enroll in a drug treatment program and to complete the requirements for applying for home confinement. The court specified a deadline of November 5, and stressed this was defendant's last chance: "You have to have it done. If it's not done, then you'll have to do jail time."
On November 5, defendant submitted to the court his proof of enrollment in a drug treatment program. The court apparently instructed him to have "his [home] confinement bracelet put on that day,"*fn4 but defendant instead turned himself in to serve time in actual custody for his Vehicle Code offenses.
Over four months later, at a March 21, 2011 hearing, Judge Larsh stated defendant had been terminated from the drug treatment program for absences on November 3, 10, and 17. The termination report showed defendant had completed a one-hour intake, a fee assessment, one treatment plan, one education hour, and one group counseling. Because defendant advised the court he could not afford counsel, the court appointed the public defender to represent him.
Defense counsel explained to the court the circumstances of defendant's termination from the drug treatment program: Due to his incarceration beginning on November 5, he was absent from the program for three weeks and was therefore terminated from it. After defendant's release from jail, he lost his job, became homeless, and had no money to pay for a program. Defendant was now employed, had a ...