Metropolitan News-Enterprise


Thursday, December 30, 2010


Page 3


No Termination From Diversion Due to Inability to Pay—Court of Appeal




A defendant ordered into a criminal diversion program cannot be terminated on the basis of inability to pay program costs, the Third District Court of Appeal ruled yesterday.

The grounds for terminating a defendant from diversion are laid out in the applicable statutes, and inability to pay isn’t one of them, Justice Tani Cantil-Sakauye, who becomes chief justice of California on Monday, wrote for the court.

The panel sent the case of Anita Marie Trask back to Sacramento Superior Court, but declined to order that the county be ordered to pay for the program in which Trask was placed, or that she be placed in an alternative program at no cost to her. It will instead be up to the trial judge to find an appropriate alternative to terminating the defendant from diversion, the justice said..

Trask was granted diversion after entering a plea of no contest to possession of methamphetamine and assigned to a program run by the National Council on Alcoholism and Drug Dependence

She subsequently sought to have the program fees waived or be assigned to another program for which she would not have to pay. In a declaration, she explained that NCADD would not allow her to participate unless she paid an intake fee of at least $75 in full, and that she would have to make monthly payments to cover the program costs.

Needing Job

Trask said she could not make the payments because she was an unemployed, often-homeless single mother of five minor children. She added that she was willing to participate in a drug program, and explained that she as a certified registered nurse assistant in South Dakota and had a job waiting for her there if she could get the drug charge dismissed, but could not work in that field if convicted.

Her court-appointed attorney also submitted a declaration, explaining that NCADD would not waive the fees, that Trask was not eligible for any form of public assistance that might pay them, and that a probation officer had informed counsel that, because of budget constraints, there were no free local government programs that the defendant could attend in place of NCADD.

Judge Gary E. Ransom denied the motion, finding that there was no right to a free diversion program for indigents, and invited the defendant to “take it up” to the Court of Appeal. The defense then appealed the denial, but the appeal was dismissed in March as being from a nonappealable order.

Ransom terminated Trask from diversion, reinstated the drug charge, and placed her on three years probation with conditions including 60 days in jail.

On appeal from the conviction, the attorney general conceded that the trial judge had abused his discretion, and urged the appellate court to remand so that the court could consider whether Trask was eligible for “fee exemptions” from NCADD or another program.

Cantil-Sakauye drew a distinction between a defendant who is merely seeking to enter diversion and one who is actually terminated from a program. Trask falls in the latter category, the justice explained, because she was found eligible and granted deferred entry of judgment under the statutory scheme beginning with Penal Code Sec. 1000.

Statutes Explained

Under those statutes, the jurist went on to say, if the defendant is eligible for diversion, the prosecutor must notify defense counsel and the matter must be set for hearing. At that time, if the defendant consents to diversion and waives time limits, the court may either grant diversion immediately or refer the matter to the probation department for an investigation into whether diversion is appropriate given the defendant’s circumstances, the final decision being up to the judge.

In order to enter diversion, the defendant must enter a guilty plea and waive the time limit for sentencing. The court then defers entry of judgment and orders the defendant to comply with program conditions.

If the defendant successfully completes the program, the plea is set aside and the case is dismissed. Otherwise, the defendant may be terminated from diversion and sentenced.

Under the plain language of Sec. 1000.3, Cantil-Sakauye emphasized, there are only four grounds for termination—unsatisfactory performance, failure to benefit from the program, conviction of a felony or violent misdemeanor, or criminal conduct rendering deferred entry of judgment inappropriate.

Statutes Cited

Since Trask was unable to start the program, her performance could not have been satisfactory or unsatisfactory and she could not have benefited or failed to benefit from it, and there was no evidence of any criminal conviction or criminal conduct after the court deferred judgment, so none of the grounds for termination applied, the justice said.

“Nor will we construe the statute to allow an additional ground for termination of diversion—the inability to pay fees,” the justice wrote. “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.”

Cantil-Sakauye cited Sec. 1000(c), which mandates that a diverted defendant be referred either to a program certified by the county or to a free program approved by the court. And another statute, she noted, requires that drug programs certified by a county provide fee waivers to those who cannot afford to pay.

“In light of these provisions, termination of diversion based solely on a defendant’s inability to pay is inconsistent with and violates the deferred entry of judgment statutory scheme,” the justice wrote.

The case is People v. Trask, C064804.


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