People v. Macafee

In People v. Macafee (1980) 109 Cal. App. 3d 808, the defendant had been arrested for disorderly conduct and battery. On the night of December 24-25, 1978, he had approached a passenger in a vehicle and struck him on the side of the head. The victim complained to the police, who came to investigate and who thought the defendant was intoxicated. The officer arrested him for disorderly conduct, and the victim made a citizen's arrest for battery. Later, after the defendant had been taken to jail, a booking search revealed a razor blade in a folded piece of paper and a usable quantity of cocaine in a paper bindle. The defendant was convicted of possession of cocaine, and the charges of battery and disorderly conduct were dismissed. ( People v. Macafee, supra, 109 Cal. App. 3d at p. 811.) The defendant challenged the district attorney's determination that he was ineligible for diversion under section 1000. "For an accused to be eligible for diversion, . . . section 1000 requires, inter alia, that 'the offense charged did not involve a crime of violence or threatened violence.' " ( People v. Macafee, supra, 109 Cal. App. 3d at p. 812, quoting 1000, subd. (a)(2).) The appellate court reversed the probation order and remanded to allow the trial court to determine whether the defendant should be diverted, noting: "An offense specified in section 1000 does not 'involve' a crime of violence or threatened violence unless the drug offense played some part in the commission of the violent crime, e.g., where the defendant committed a crime of violence while under the influence or during the purchase of a controlled substance.Appellant's possession of cocaine apparently played no part in the commission of the battery. There was no evidence that he was under the influence of cocaine at the time." ( People v. Macafee, supra, 109 Cal. App. 3d at pp. 812-813.) In Macafee, the violent act (the battery) occurred earlier in the evening and in a different location (on the street as compared with at the police station) than the drug offense (possession of cocaine), which was before the court.