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The People v. Darin Demetrius Greene

October 30, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DARIN DEMETRIUS GREENE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F05762)

The opinion of the court was delivered by: Raye , P. J.

P. v. Greene CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Darin Demetrius Greene was sentenced to state prison after failing to complete drug diversion. He contends the matter must be reversed because the trial court failed to order preparation of a probation report. Finding any error harmless, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 12, 2011, defendant was charged by an amended consolidated complaint with two felony counts of possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) It was alleged that he had committed at least one of these offenses while released from custody pending judgment on a primary offense. (Pen. Code, § 12022.1; further undesignated section references are to the Penal Code.)

On the same date, defendant pleaded no contest to both counts and admitted the special allegation.*fn1 The trial court suspended criminal proceedings and committed defendant to drug diversion (§ 1000), explaining that if he did not successfully complete the program, he would be sentenced to state prison for a minimum of three years four months or a maximum of five years eight months.

On February 23, 2011, the trial court re-referred defendant to diversion. On March 16, 2011, the court terminated diversion but then reinstated it. On July 6, 2011, after defendant's third failure in diversion, the court permanently terminated diversion and reinstated criminal proceedings.

On July 20, 2011, the trial court ordered a transcript of the plea proceedings and continued the matter for judgment and sentence to July 27, 2011. The court did not order the preparation of a probation report.

On July 27, 2011, defense counsel filed a statement in mitigation, claiming and attaching documentation to prove that defendant failed to complete diversion because he had been forced to go out of state on short notice to assist his mother during a medical emergency.

At sentencing on July 27, 2011, the trial court stated it had reviewed the statement in mitigation. Defense counsel asked the court to consider that defendant had not incurred any new charges other than his failures to complete diversion and one failure to appear. Defendant then read a statement purporting to explain further why he had failed to complete diversion.*fn2

The prosecutor stated that defendant's lengthy criminal history included multiple felonies, including a 2003 strike for a violation of section 422, along with parole violations in 2005 and 2006 and "two additional offenses in [20]07 as well as 2006 which was an additional [section] 236[.]" Given the chance to respond, defense counsel did not dispute the ...


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