Matthew J. Ruff Drug Crimes Law Blog on Lawyers.com

If the prosecutor determines that the defendant is not eligible for deferred entry of judgment, the defendant’s sole remedy is a postconviction appeal. Pen C §1000(b); People v Wright (2002) 99 CA4th 201, 205–208, 121 CR2d 419 (trial court erred in granting deferral over prosecution’s objection); People v Sturiale (2000) 82 CA4th 1308, 1314, 98 CR2d 865. According to a local Mojave Criminal Attorney under the former drug diversion program, a defendant was not entitled to pretrial judicial review of a prosecutor’s adverse diversion eligibility determination. Sledge v Superior Court (1974) 11 C3d 70, 75, 113 CR 28. The courts of appeal recognized an exception under the former diversion program when the prosecutor’s eligibility determination involves resolution of factual issues or statutory interpretation, both judicial functions. People v Williamson (1982) 137 CA3d 419, 422, 187 CR 107; People v Paz (1990) 217 CA3d 1209, 1217, 266 CR 468. However, the courts of appeal are in disagreement as to which eligibility determinations involve those judicial functions, particularly regarding whether the determination that there is evidence that a defendant
possessed narcotics for sale rendering defendant ineligible under Pen C§1000(a)(3) is a judicial function. The courts in Williamson and People v Venghiattis (1986) 185 CA3d 326, 333, 229 CR 636, held that determining whether a defendant possesses marijuana (in violation of Health & S C §11358) for personal or commercial use involves issues of credibility and the resolution of conflicting inferences  of intended use, and therefore is a function of the trial court. But the courts in People v Brackett (1994) 25 CA4th 488, 500, 30 CR2d 557, and People v McAlister (1990) 225 CA3d 941, 944, 275 CR 229, held that a prosecutor’s determination that there is evidence of a violation that defendant possessed narcotics for sale does not involve the resolution of conflicting inferences or the determination of credibility, and therefore is not subject to pretrial review. As to the issue of whether an eligibility determination involves statutory interpretation, two cases provide guidance. Thus, a Mojave Lawyer has asserted that in In People v Paz,supra, the court held that a determination that the defendant had a prior conviction for an offense involving controlled substances is not subject to review as the finding did not involve statutory interpretation or factfinding. In People v Martinsen (1987) 193 CA3d 843, 848, 238 CR 530, the court held that the determination of whether the defendant has successfully completed probation within the meaning of Pen C §1000(a)(4) does involve statutory interpretation requiring a hearing and court examination of defendant’s record.