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Name: People v. Ochoa
Case #: C059868
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/15/2009

A conviction for possession of marijuana occurring more than two years prior to the instant offense does not render a defendant ineligible for Penal Code section 1000 deferred entry of judgment. Appellant was convicted of possession of marijuana in 2006. He was subsequently charged with possession of cocaine and under the influence. Noting the 2006 conviction, the court denied appellant’s motion for deferred entry of judgment under Penal Code section 1000 on the basis of subdivision (a)(1) of the statute which holds that a person is not eligible if he has a conviction for controlled substances prior to the alleged commission of the charged offense. But Health and Safety Code section 11361.5, subdivision (a) provides that records of arrest or conviction of persons for Heath and Safety Code section 11357 (possession less than an ounce of marijuana) shall not be kept beyond two years from date of conviction and, under Health and Safety Code section 11361.7, subdivision (a), any document not destroyed shall not be considered relevant for any purposes. Because the 2006 conviction could not have been considered, the denial was error and judgment was reversed and remanded for evaluation for Penal Code section 1000 eligibility.