A PUBLICATION OF THE CRIMINAL JUSTICE SECTION OF THE LOS ANGELES COUNTY BAR ASSOCIATION
Volume 1, Number 6
PROPOSITION 36 REFERENCE GUIDE
Charges that are related to the use of drugs, including 1) the possession or use of drugs and drug paraphernalia, 2) failure to register as a drug offender, and 3) “any similar activities.”
Penal Code Section 1210(d)
Individuals are excluded if convicted of possession for sale, or manufacturing any controlled substance, or transportation for non-personal use.
The burden is on the defendant to prove by a preponderance of the evidence that the transported drugs were for his own use.
Misdemeanor charges that are not related to the use of drugs.
ELIGIBLE DATES OF OFFENSES
The prospective-only provision of Proposition 36 is unconstitutional (this holding is questionable).
A defendant is “sentenced” before July 1, 2001, even if his case is still pending on appeal after July 1, 2001.
A defendant on felony probation for a violent offense may have his probation revoked and be sent to state prison based on a new drug-related conviction.
A minor in juvenile court may be denied Proposition 36 treatment even though an adult convicted of the same charges in adult court may be granted Proposition 36.
Penal Code Section 1210.1(b)(1)-(5): a defendant may be convicted of a nonviolent drug possession offense and still be excluded from Proposition 36 probation if:
Driving with a blood alcohol level of .08 percent or higher, in violation of Vehicle Code section 23152(b), is an offense involving the threat of physical injury to another person.
A juvenile sustained petition, for an offense that would be a strike if convicted as an adult, is not a conviction for purposes of Proposition 36 eligibility.
The court has no authority to “strike a strike” to make the defendant eligible for Proposition 36. Dismissal of the prior strike allegation cannot make an otherwise ineligible defendant become eligible for Proposition 36.
The “five-year washout period” means the five years immediately preceding the current drug offense.
The court has the authority to dismiss a non-drug offense and allow the defendant to participate in Proposition 36 for the remaining drug offense.
If the prosecutor dismisses a charge that would have otherwise made the defendant ineligible for Proposition 36 on the remaining drug charge, the defendant is not entitled to Proposition 36 upon a violation of probation.
Being convicted of stealing drugs as well as possession of drugs will not exclude a defendant from Proposition 36 if the purpose of the theft was to obtain narcotics.
Forging prescriptions in order to obtain controlled substance will exclude someone from Proposition 36 as it involves more than using, possessing, or transporting a controlled substance for personal use.
3) Defendants who use a firearm while possessing or being under the influence or cocaine, heroin, methamphetamine, or PCP;
4) Defendants who refuse drug treatment as a condition of a grant of probation;
If the defendant, by his unequivocal conduct, indicates that he will not participate in a drug treatment program, Proposition 36 probation may be denied.
5) Defendants who have twice previously received treatment under Proposition 36 and have found by the court to be unamenable to any available drug treatment.
CONDITIONS OF PROBATION
Required: Penal Code Section 1210.1(a)–participation in and completion of a drug treatment program up to 12 months long;
Discretionary: Penal Code Section 1210.1(c)(3)–up to six months additional aftercare treatment; Section 1210.1(a)–vocational training, literacy training or community service.
The court may impose a condition of probation that the defendant waive any custody credits for time spent in a residential drug treatment program.
Not Permitted: Penal Code Section 1210.1(a)–custody in a jail or state prison; Section 1210(b)–participation in a treatment program that is offered in a jail or state prison.
A drug-related condition of probation includes a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.
First Violation: Penal Code Section 1210.1(e)(3)(A)--probation shall be revoked if the court finds by a preponderance of the evidence that the defendant poses a danger to the safety of others.
The trial court is precluded from summarily revoking probation and remanding the defendant absent a finding that he poses a danger to society or constitutes a flight risk.
The defendant may present a medical marijuana defense at a probation violation hearing.
Second Violation: Penal Code Section 1210.1(e)(3)(B)–probation shall be revoked if it is established by a preponderance of the evidence that the defendant poses a danger to others or that the defendant is unamenable to drug treatment.
Penal Code Section 1210.1(e)(2)(A)(B)–if probation is not revoked, the court may modify or intensify the treatment that the defendant is receiving.
The judge, not the defendant, determines the appropriate treatment and the judge must consider factors in aggravation and mitigation in revoking probation and sentencing the defendant to state prison.
Failure to report to a representative of the Probation or Mental Health Departments to locate an appropriate treatment program for the defendant is a drug-related violation.
Separate and distinct motions to revoke probation, filed by the People, may be heard in one violation hearing.
Third Violation: Penal Code Section 1210.1(e)(3)(C)–probation shall be revoked and Proposition 36 is to be terminated if the violation is proved by a preponderance of the evidence. If probation is revoked, the defendant may be sentenced under available statutory law.
The State has the burden of proof as to whether the violation is non-drug related.
A supplemental probation report should be ordered prior to sentencing the defendant unless there is a recent (less than six months old) report that can be incorporated.
People v. Budwiser, 140 Cal App 4th 105, was published. The Third District Court of Appeal held that the defendant was not entitled to multiple violation of probation hearings even though the People filed two petitions to revoke based on separate and distinct violations that occurred on separate dates. Further, strapping a “Whizanator” to his person indicates that the defendant is more concerned with avoiding detection rather than getting drug treatment.
People v. Moniz, 140 Cal App 4th 86, was also published from the Third District Court of Appeal. Even though the defendant possessed drugs, his additional act of concealing them is a misdemeanor violation of Penal Code section 135 that does not involve the simple possession of drugs. Proposition 36 could therefore be denied.