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www.lawyerdude.s5.com/6416pt3.html Contains the factual history of the case with verbal (not electronic) link to the transcript. Contains the chronology of the case.

(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a

violation of Section 11350, 11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code, or

Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or

processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was

secured by a fictitious prescription and is for the personal use of the defendant and was not sold or

furnished to another, or Section 11370.1 of the Health and Safety Code if the amount possessed is onehalf

gram or less of a substance containing cocaine base, one gram or less of a substance containing

cocaine, one gram or less of a substance containing heroin, one gram or less of a substance

containing methamphetamine, one-eighth gram or less of a crystalline substance containing

phencyclidine, one milliliter or less of a liquid substance containing phencyclidine, one-half gram or less of

plant material containing phencyclidine, or one hand-rolled cigarette treated with phencyclidine, or

subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section

381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled

substance, or Section 4230 of the Business and Professions Code, and it appears to the district attorney

that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, all of the

(1) The defendant has no conviction for any offense involving controlled substances prior to the

(2) The offense charged did not involve a crime of violence or threatened violence.

(3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a

(4) The defendant's record does not indicate that probation or parole has ever been revoked without

(5) The defendant's record does not indicate that he or she has been diverted pursuant to this chapter

within five years prior to the alleged commission of the charged divertible offense.

(6) The defendant has no prior felony conviction within five years prior to the alleged commission of the

(b) The district attorney shall review his or her file to determine whether or not paragraphs (1) to (6),

inclusive, of subdivision (a) are applicable to the defendant. Upon the agreement of the district

attorney, law enforcement, the public defender, and the presiding judge of the criminal division of the

municipal court or a judge designated by the presiding judge, this procedure shall be completed as soon

as possible after the initial filing of the charges. If the defendant is found eligible, the district attorney shall

file with the court a declaration in writing or state for the record the grounds upon which the determination

is based, and shall make this information available to the defendant and his or her attorney. This

procedure is intended to allow the court to set the diversion hearing at the arraignment. If the defendant

is found ineligible, the district attorney shall file with the court a declaration in writing or state for

the record the grounds upon which the determination is based, and shall make this information

shall be made only to diversion programs which have been certified by the county drug program

administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to diversion programs

which provide services at no cost to the participant and have been deemed by the court and the county

drug program administrator to be credible and effective. The defendant may request to be referred to a

program in any county, as long as that program meets the criteria set forth in this subdivision. Prior to

January 1, 1995, all referrals to diversion granted by the court shall, to the maximum extent possible, be

made to diversion programs which have been certified by the county drug program administrator pursuant

to Chapter 1.5 (commencing with Section 1211) of Title 8, or to diversion programs which provide services

at no cost to the participant and have been deemed by the court to be credible and effective.

(d) Successful completion of diversion for a violation of Section 11368 of the Health and Safety Code

shall not prohibit any administrative agency from taking disciplinary action against a licensee or from

denying a license. Nothing in this subdivision shall be construed to expand or restrict the provisions of

(e) Any jurisdiction that provides diversion under this chapter may require a divertee to undergo

analysis of his or her urine for the purpose of testing for the presence of any drug as part of a treatment

and supervision program. However, urine analysis results shall not be admissible as a basis for any

Provision of this section authorizing the district attorney to preliminarily determine the eligibility of

certain narcotics defendants for pretrial "diversion" into an education and rehabilitation program did not

deny defendant, as to whom the district attorney refused to initiate diversion proceedings, due process or

equal protection. Sledge v. Superior Court of San Diego County (1974) 113 Cal.Rptr. 28, 11 Cal.3d 70,

Statutory diversion scheme (this section et seq.), under which court may divert from normal criminal

process first time drug offenders, is pretrial alternative to further prosecution. People v. Hudson (App. 3

Overriding purpose of legislature in enacting this section was to facilitate its broader aim of conducting

an unusually liberal experiment in rehabilitation by encouraging the broadest possible participation in

drug treatment programs. People v. Dyas (App. 2 Dist. 1979) 161 Cal.Rptr. 39, 100 Cal.App.3d 464.

Purposes of the diversion statute are to spare appropriately selected first offenders the stigma of

a criminal record and to relieve the congested criminal courts of some relatively minor drug abuse

prosecutions. People v. Campbell (App. 1975) 120 Cal.Rptr. 330, 46 Cal.App.3d 799, hearing denied and

ordered not to be officially published. Hmm - because I am a lawyer and a man and older than the

Objects to be accomplished by the diversion statutes are to permit courts to identify the experimental

or tentative user before he becomes deeply involved with drugs, and to reduce the clogging of the

criminal justice system. People v. Fulk (App. 1 Dist. 1974) 114 Cal.Rptr. 567, 39 Cal.App.3d 851. I was

Trial court acted in excess of its jurisdiction in granting diversion after trial and conviction,

although defendant's pretrial diversion request had been denied because one count alleged

nondivertible offense and defendant was convicted only of lesser included, divertible offense.

People v. Alonzo (App. 5 Dist. 1989) 258 Cal.Rptr. 263, 210 Cal.App.3d 466, review denied.

Authority of district attorney, under this section to preliminarily determine the eligibility of certain

narcotics defendants for pretrial "diversion" into an education and rehabilitation program is not an

exercise of judicial power and is therefore not violative of the constitutional doctrine of separation of

powers under Const. Art. 3, Sec. 3. Sledge v. Superior Court of San Diego County (1974) 113 Cal.Rptr.

Failure to divert in a de minimus situation, as where person uses for a bad headache a codeine

tablet prescribed for someone else, would be a gross abuse of discretion. Bosco v. Justice Court of

Exeter-Farmersville Judicial Dist. (App. 5 Dist. 1978) 143 Cal.Rptr. 468, 77 Cal.App.3d 179.

Court may exercise its discretion, in determining that diversion is proper with respect to person charged

with drug offense, without the concurrence of the district attorney. Morse v. Municipal Court for San

Jose-Milpitas Judicial Dist. of Santa Clara County (1974) 118 Cal.Rptr. 14, 13 Cal.3d 149, 529 P.2d 46.

Where trial court in denying motion to divert charge of possession of marijuana declared that persons

who were involved in marijuana because of lack of education or through ignorance could be proper

candidates for diversion but that evidence showed defendant did not lack understanding and could take

marijuana or leave it alone and thus would not "benefit" from diversion, denial of diversion motion

was an abuse of discretion. Harvey v. Superior Court In and For Butte County (App. 3 Dist. 1974) 117

Physician and surgeon charged with issuing fictitious prescriptions for narcotic drugs was as

matter of law not eligible for diversion, from normal criminal processes, for treatment and rehabilitation

as a drug offender. People v. Koester (App. 1 Dist. 1975) 126 Cal.Rptr. 73, 53 Cal.App.3d 631. Why not?

Aha! If the evidence were to be suppressed then there would be no evidence of any other crime

and diversion would retroactively be offered - but the entire case would go away!

Prosecutor acted within statutory authority in determining preliminary screening eligibility for diversion;

record showed prosecutor reasonably, objectively and lawfully determined that narcotics defendant was

not eligible for diversion. People v. Covarrubias (App. 2 Dist. 1993) 22 Cal.Rptr.2d 475, 18 Cal.App.4th

If court after considering array of personal and social factors bearing upon diversion decides that

probable outcome of concurrent criminal charges will not militate against defendant's availability and

amenability to diversion program, court should grant immediate diversion of narcotics charge; however, if

court believes that defendant's suitability and availability for diversion program depends heavily upon

future outcome of accompanying criminal charges, court should offer defendant deferment of diversion

application pending disposition of other charges. Harvey v. Superior Court In and For Butte County (App.

Since diversion would spare a defendant the stigma of a criminal record, a defendant is condemned to

suffer a grievous loss by a finding of ineligibility for diversion and consequently he must, at some point

be accorded the procedural protection of a hearing on such issue and proceeding in court of

appeal to review prosecutor's determination of ineligibility provides such hearing essential to due

process. People v. Dyas (App. 2 Dist. 1979) 161 Cal.Rptr. 39, 100 Cal.App.3d 464. Aha!

Function of district attorney in determining whether there is "evidence" permitting inference that

defendant has committed narcotic offense other than one listed in this section does not involve resolution

of conflicting inferences or determination of credibility, which are hallmarks of fact-finding. People v.

Williamson (App. 3 Dist. 1982) 187 Cal.Rptr. 107, 137 Cal.App.3d 419. Aha. Where the DA adds the

charges that the police did not add and only adds them after weighing the credibility of a witness

whose credibilty was doubted by the jury then they have intruded into the fact finding area.

Evidence of defendant's alleged possession for sale of methalphedadate tablets, which evidence was

ordered suppressed, could not support determination of defendant's ineligibility for diversion, since such

evidence was rendered inadmissible in hearing in court of appeal to review such determination by Sec.

1538.5 providing that suppressed evidence shall not be admissible at any trial or other hearing.

Defendant was not entitled to pretrial hearing to determine if district attorney correctly found existence

of evidence of possession of controlled substance for sale which rendered defendant ineligible for pretrial

drug diversion for charge of being under influence of controlled substance, despite defendant's lack of

opportunity to contest disqualifying crime before any court; defendant's only remedy would be to

challenge district attorney's finding of ineligibility in postconviction appeal. People v. Brackett (App.

3 Dist. 1994) 30 Cal.Rptr.2d 557, 25 Cal.App.4th 488. Aha. I knew that this remedy was available and

.Where court and real parties in interest were given due notice of petition for writ of mandate directing

court to refrain from proceedings to determine intended use of marijuana which real parties in interest were

charged with cultivating, and opposition was filed in respect thereto. Court of Appeal could issue a

peremptory writ without prior issuance of an alternative writ. People v. Superior Court of Calaveras

REV & TAX Sec. 24725, Allocation of income and deductions among taxpayers; Internal Revenue Code

Sec. 24725. Allocation of income and deductions among taxpayers; Internal Revenue Code applicability;

The provisions of Section 482 of the Internal Revenue Code, [FN1] relating to allocation of income and

deductions among taxpayers, shall be applicable, except as provided in Article 1.5 (commencing with

Immunity from state income tax, solicitation of orders for interstate sales, de minimus activities, see

Wisconsin Dept. of Revenue v. William Wrigley, Jr., 1992, 112 S.Ct. 2447, 120 L.Ed.2d 174, on remand

Even if he is not granted diversion, Palaschak's punishment should not exceed that of drug diversion.

Issue #84.1: Prosecutor Gibbons failed to adequately describe the severity of witness Schwentner's crimes

describing them only as "theft". Furthermore he did not present her immunity paper as evidence before the

grand jury and he specifically said at 85:12 and 91:27 that he had no further exculpatory evidence.

Issue #84.2: At Grand Jury transcript page 100 Gibbons's instruction regarding the use of the conjunctive which

supposedly means the disjunctive is wrong - and prejudicial - and not moot despite the acquittal on this count.

Had the grand jury been properly instructed it would not have returned an indictment on 11380 - and Palaschak

Issue #84.3: At Grand Jury transcript page 96, line 9, Gibbons improperly instructs the jury that solicitation

constitutes conspiracy in violation of Wharton's rule. Moot? Not if we find that the entire indictment was obtained

by improper instruction. Then it would tend to support our contention of chilling of Palaschak's rights of free

Issue #84.4: Improper jury instruction. No PC 1111 instruction. At Grand Jury transcript page 94, line 19

Gibbons invites the jury to find a true bill regarding possession without giving the jury a PC 1111 instruction - nor

Issue #84.5: Improper jury instruction. Grand Jury transcript page 93 Prosecutor Gibbons improperly instructs

the grand jury that use of drugs is corroboration of possession but neglects to inform the jury of the subtle

distinction between use and possession and the heightened corroboration requirement where the corroboration

must corroborate who possessed the drug and the corroboration in that regard only comes from accomplice Jobin

Issue #84.6: Improper Jury instruction to grand jury. See 77:19 (CT_); Gibbons implied that Palaschak's

being under the influence of LSD was a crime and never did point out the exculpatory fact that being under the

Prosecutorial Misconduct by improper argument at sentencing that Palaschak should be punished more

Issue #85.1: Prosecutorial Misconduct. Improper argument that Palaschak is "a lousy lawyer" [___]when no

evidence was presented and the issue is irrelevant - and the attempt to imply that the DA had witnesses who

Palaschak has been denied effective assistance of counsel on appeal by the neglect and deceit of

34See also ALR2d 55:1072 Right of indigent defendant in criminal case to aid of state as

regards new trial or appeal, L Ed 2d 83:1112 When is attorney's representation...so deficient as to

[deny] effective assistance of counsel, ALRFed 26:218 Modern status of rule as to test in federal

court of effective representation by counsel, ALR4th 13:533 Adequacy of...counsel...regarding

appointed counsel Dolge, and by the failure of the court of appeal to appoint competent counsel upon request

of Palaschak. See L Ed 2d 102:1049 Supreme Court's views as to accused's federal constitutional right

Issue #86.1: The court of appeal cited Fein - a case that deals exclusively with search and seizure - and

thereby sent a signal that this was an issue Dolge missed. Palaschak repeatedly told appointed counsel Dolge

about that issue and Palaschak argued the search and seizure issue prominently in his brief. On December 23,

1993 the court of appeal issued its decision - prior to ruling on Palaschak's request for additional time to refine

his 100 page brief. The court of appeal reversed Palaschak's conviction ostensibly on the basis that use does

not constitute possession. Nonetheless the court cited People v Fein (1971) 4 C3d 747@754, 484 P2d 583

which case deals almost exclusively with suppressing the fruit of an invalid search upon appeal. In dissent Judge

Yegan implies that the prosecution should ask for a rehearing and argue that the trial court should have given an

aiding and abetting instruction. The error in this calculation is that the only evidence of Palaschak's aiding and

abetting possession is the testimony of the accomplice - which testimony is uncorroborated and therefore under

8 Oct 95. Added Payton. Added issues regarding appellate counsel’s failure to include suppression motion

Business and Professions Code §6102 b was amended effective 1986 to read in pertinent part as follows:

"(b) For the purposes of this section, a crime is a felony under the law of California if it is declared to be so

specifically or by subdivision (a) of section 17 of the Penal Code, unless it is charged as a misdemeanor

pursuant to Paragraph (4) or (5) of subdivision (b) of section 17 of the Penal Code, irrespective of whether in a

particular case the crime may be considered a misdemeanor as a result of postconviction proceedings,

including proceedings resulting in punishment or probation set forth in paragraph (1) or (3) os

Palaschak's crime was deemed a misdemeanor and at no time was adjudicated to be a felony.

"(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or

imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgement imposing a punishment other than imprisonment in the state prison.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting

probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a

(4) [when the prosecutor files it as a misdemeanor] [sic the statutes does not consider the permutation of a grand

(5) [when a magistrate determines the offense to be a misdemeanor prior to preliminary examination - once