DEFERRED ENTRY OF JUDGMENT FOR NORA AUNOR?
By: Roman P. Mosqueda, Esq.
A defendant accused of possession of any controlled substance in California may be eligible for deferred entry of judgment under Section 1000 et. seq. of the Penal Code.
Nora Aunor, whose birth name is reportedly Nora Cabaltera Villamayor, was allegedly arrested at the LAX in Los Angeles, CA, with felony possession of 8 grams of methamphetamine hydrochloride (or shabu) on March 30, 2005, at around 8:30 p.m.
She was reportedly brought to the Los Angeles Police Department in Van Nuys where she was booked on felony drug possession, and released after posting $10,000.00 bail at around 6:50 a.m. Her arraignment is on April 21, 2005 in Division 145 (Judge Paula Adele Mabrey) of the LAX Court.
Charge
Against
Nora
Aunor:
She was reportedly charged with violation of Section 11377(a) of the California Health and Safety Code, which punishes every person who possesses any controlled substance with imprisonment in a county jail for a period of not more than one year or in state prison.
Thus, the prosecutor has prosecutorial discretion whether to file a felony or a misdemeanor complaint against Nora Aunor, although the LA Police Department has reportedly charged and recommended felony possession.
Indeed, Section 11377 of the California Health and Safety Code is a “wobbler,” that is, it penalizes the crime as a misdemeanor: imprisonment in a county jail for a period of not more than one year, as well as a felony: imprisonment in state prison. A felony is a crime which is punishable with death or by imprisonment in the state prison (for 16 months, or two or three years, unless a different punishment is prescribed), under Sections 17 and 18 of the Penal Code.
Procedure
For Deferred
Entry
of Judgment:
Deferred entry of judgment refers to a procedure of suspending the criminal proceedings with or without (in a preguilty plea drug court program) a plea of guilty for qualified defendants. Such defendants participate in a court program consisting of treatment, educational or vocational counseling and monitoring by the Probation Department.
If defendants perform satisfactorily during the period of a preguilty plea drug court program (no less than 18 months nor longer than three years), at the end of that period, the criminal charge(s) shall be dismissed, and the arrest upon which the judgment was deferred shall be deemed to have never occurred. See Sections 1000.5 in conjunction with Section 1000.6 of the Penal Code.
But if it appears to the prosecuting attorney, the Judge, or the Probation Department that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment or rehabilitation, a motion for entry of judgment may be made by the prosecutor, Judge or the Probation Department.
At the hearing of the motion for entry of judgment, if the Judge finds that the defendant is not performing satisfactorily in the assigned program, or is not benefiting therefrom, or that the defendant has been convicted of a crime as indicated, the Judge shall render a finding of guilt to the charge(s) pled, enter judgment and schedule a sentencing hearing.
Factors
Of Eligibility For
Deferred
Entry of Judgment:
After the initial filing of the charge(s) in the Complaint, the prosecuting attorney shall review his or her file to determine whether the defendant is eligible for deferred entry of judgment.
The factors of eligibility are the following:
“1. The defendant has no conviction for any offense involving controlled substance prior to the alleged commission of
the charge offense.
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 violation of the sections listed in this subdivision.
4. The defendant’s record does not indicate that probation or parole has ever been revoked without thereafter being completed.
5. The defendant’s record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment within five years prior to the alleged commission of the charged offense.
6. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.”
See Section 1000 of the Penal Code.
Eligibility
Of Nora Aunor For
Deferred Entry Of Judgment:
If a defendant, like Nora Aunor, is found by the prosecuting attorney to be eligible for deferred entry of judgment, the prosecutor shall file with the court a declaration or state for the record the bases thereof, and shall make this information available to the defendant and his or her attorney.
This procedure stated in Section 1000(b) of the Penal Code is intended to allow the Judge to set the hearing for summary grant of deferred entry of judgment at the arraignment. Otherwise, the Probation Department shall be required to investigate and report its findings and recommendations to the Judge. But if the prosecuting attorney finds for ineligibility, such finding should likewise be filed in a declaration or stated in the record.
The regular grant of deferred entry of judgment requires plea of guilty to the charge(s) and waiver of time for the pronouncement of judgment. The other kind of deferred entry of judgment involves a preguilty plea drug court program, which does not include a plea of guilty.
Whether Nora Aunor is eligible for deferred entry of judgment depends on whether she has a history of conviction for and/or violation relating to narcotics or restricted dangerous drugs; and on whether she will agree to participate in the deferred entry of judgment program of the LAX Court.
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