The Criminal Docket

  A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION  OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

    January 2007

Volume  II , Number 1  


KLEIN’S KORNER
JUDGE ROSS KLEIN
LOS ANGELES SUPERIOR COURT
TELEPHONE: (562) 804-8045

rklein@lasuperiorcourt.org

Klein's Korner Column: Miranda Rights
Proposition 36 Analysis:
     Part I: All Cases Through December 2006     
     Part II: Reference Guide: Cases and Penal Code


 PROPOSITION 36

      
My discussion of Proposition 36 will be broken down into two separate parts:  In the first part I will list all of the cases through December, 2006;  In the second part, I will provide a reference guide incorporating both the cases as well as the Penal Code.    

 PROPOSITION 36 CASES  
 (AS OF DECEMBER, 2006)  

 (Part I)

In re DeLong (8-22-02, 2nd Appellate District, B151613;  Supreme Court Petition for Review Denied 11-13-02, S110032) 93 Cal App 4th 562 (see also People v. DeLong, below)
The defendant was convicted of possession of cocaine; the offense occurred  prior to July 1, 2001, the effective date of Proposition 36.  She was entitled to the benefits of Proposition 36 since she was not convicted and sentenced until after the effective date.

In re Jose Z. (3-10-04, 5th Appellate District, F042747;  Supreme Court Petition for Review Denied 6-9-04, S124162) 116 Cal App 4th 953
The juvenile court judge refused to allow a minor the opportunity to participate in Proposition 36 treatment.  This did not violate the equal protection clauses of the United States Constitution 14th Amendment or Article I, Section 7 of the California Constitution. Minors who are in juvenile court who possess or are under the influence of narcotics are not situated the same as adults who are convicted of the same offenses. 

In re Mehdizadeh (1-29-03, 2nd Appellate District, B161117;  Supreme Court Petition for Review Denied 5-21-03, S114170) 105 Cal App 4th 995
The defendant was alleged to be a first-time violator of a drug-related condition of probation.  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 court may still alter or intensify the treatment plan.

In re Ogea (8-20-04, 4th Appellate District, G033402) 121 Cal App 4th 974
 The defendant was convicted by a jury of a violation of Health and Safety Code section 11370.1, unlawfully possessing methamphetamine while in possession of a firearm.  The trial court rejected the defendant’s request for Proposition 36 treatment; this was upheld in the appellate court.  The term “nonviolent drug possession offense” does not include offenses when the defendant also possessed a firearm since it involves more than the personal possession, use or transportation for personal use of a controlled substance.

In re Scroggins (12-14-01, 2nd Appellate District, B151619) 94 Cal App 4th 650
The defendant was placed in the Deferred Entry of Judgment program prior to July 1, 2001.  He fell off of DEJ and was sentenced after July 1, 2001.  The defendant was entitled to the benefits of Proposition 36.

In re Taylor (2-4-03, 2nd Appellate District, B161535;  Supreme Court Petition for Review Denied
5-21-03, S114392) 105 Cal App 4th 1394
The defendant had multiple drug-related violations of probation following the enactment of Proposition 36.  Failure to report to a probation officer for a drug test was deemed to be a drug-related violation.  The court is precluded from summarily revoking probation and imposing jail time until the third violation of a drug-related condition of probation.  A defendant loses the opportunity to participate in Proposition 36 treatment after a third violation of a drug-related condition of probation.

In re Varnell (6-19-03, Supreme Court, S104614) 30 Cal. 4th 1132  
The defendant was charged with possession of cocaine.  It was further alleged that he had suffered a prior strike conviction for assault with a deadly weapon which would have made him ineligible for Proposition 36 treatment.  The Supreme Court held that the trial judge may not exercise discretion and strike a strike and allow a defendant to qualify for Proposition 36.  If the court strikes the strike of an otherwise ineligible defendant, he does not then become eligible for Proposition 36.

Moore v. Superior Court of Sutter County (1-22-04, 3rd Appellate District, C044242)
117 Cal App 4th 401
In 1997, the defendant was charged with multiple felonies that occurred in May, 1997.  The case was not resolved for three and one-half years.  In December, 2000, the defendant pled no contest to assault with intent to commit rape.  In January, 2001, the defendant was placed on probation for the 1997 drug offense.  The defendant was subsequently charged with possession of methamphetamine on October 19, 2002.  The Court held that the defendant was entitled to Proposition 36 since the five-year washout period begins when the defendant committed the prior serious felony, not when he was convicted of that felony.

People v. Atwood (7-18-03, 3rd Appellate District, C042683) 110 Cal App 4th 805 
The defendant was placed on Proposition 36 probation on conditions requiring that she participate in drug treatment counseling and follow all orders of the probation department.  The defendant was discharged from her treatment program and she did not keep a scheduled appointment with her probation officer.  Before revoking probation and sentencing the defendant, the trial court is required to determine on the record whether the probation condition violated was drug or non-drug related. 

People v. Ayele (10-18-02, 4th Appellate District, D038700;  Depublished 1-15-03, Supreme Court Review Dismissed 10-13-04, CRC 29.3(b), S111522) 102 Cal App 4th 1276
Suspecting that the defendant was involved in a narcotics transaction, the officers chased and tackled the defendant.  He was subdued after a struggle.  He was convicted of both possession of narcotics as well as resisting or delaying a peace officer.  The defendant was not eligible for Proposition 36 since the resisting/delaying charge is not related to drug usage.

People v. Barasa (10-30-02, 4th Appellate District, D038830;  Supreme Court Petition for Review Denied 1-22-03, S112006) 103 Cal App 4th 287
The defendant pled guilty to transporting of a controlled substance.  When a defendant transports narcotics for his own use, he is eligible for Proposition 36.  The court held that the burden is on the defendant to show that the transported drugs were for his own use.  He failed to show this, and his conviction was affirmed.

People v. Bowen (12-21-04, 3rd Appellate District, C044731; Supreme Court Petition for Review Denied 3-23-05, S131171)  125 Cal App 4th 101
The defendant pled guilty to possession of heroin prior to the effective date of Proposition 36.  The defendant was found in violation of probation three separate times, occurring both before as well as after Proposition 36 became effective.  The trial court was correct in considering the pre-Proposition 36 drug-related violations of probation and, under Penal Code section 1210.1(e)(3)(F), he was ineligible for further Proposition 36 probation.

People v. Budwiser (6-7-06, 3rd Appellate District, C049566) 140 Cal App 4th 105
The defendant was placed on Proposition 36 probation on July 7, 2004.  On different dates, the probation officer filed petitions for revocation of probation.  The first was filed on March 4, 2005 based on three positive methamphetamine tests and failure to test and being  discharged from the drug treatment program on November 17, 2004.   The second petition was filed on March 7, 2005 and alleged that on November 23, 2004 “the defendant was in possession of a kit attached to his person consisting of a plastic hollow tube taped to his penis connected to a bottle filled with clean urine, i.e. a ‘whizanator’ device.”  The separate petitions were addressed in a probation violation hearing.  The court found the allegations in each petition to be true and terminated Proposition 36.  The defendant was properly discharged; a separate hearing for each petition was not required.  Further, “The evidence shows defendant is not interested in avoiding detection than in curing his drug habit...’Whiz’ kids don’t want drug treatment.”

People v. Campbell (2-28-03, 6th Appellate District, H023299;  Depublished 5-21-03, Supreme Court Petition for Review Dismissed 10-13-04, CRC 29.3(b),  S115020) 106 Cal App 4th 808
The defendant was on probation for possession of heroin.  It was alleged that he had violated his probation based on multiple grounds–failure to complete a drug program, use of marijuana, failing to report, and a new DUI conviction.  Proposition 36 is intended for those individuals who commit qualifying offenses or probation violations.  The DUI is a non-qualifying offense, and the defendant was properly excluded from Proposition 36.

People v. Campbell (6-29-04, 1st Appellate District, A104284;  Supreme Court Petition for Review Denied 9-29-04, S126941) 119 Cal App 4th 1279
The defendant was previously placed on a Proposition 36 grant of probation.  On a second drug-related violation, the judge indicated to the defendant that the judge felt that a residential program was the appropriate treatment.  The defendant wanted outpatient treatment, and the judge agreed in exchange for the defendant’s agreement that should he again violate his probation he would receive three years in state prison.  The appellate court refused to uphold the invalid “agreement” since the judge must determine the appropriate treatment level and must further consider aggravating and mitigating factors when revoking probation and sentencing the defendant to state prison.

People v. Cano (4-24-02, 2nd Appellate District, B152598; Depublished, Petition for Supreme Court Review Denied, 7-10-02, S107263) 97 Cal App 4th 1216
The defendant was convicted of possession of cocaine in 1998 and was placed on three years probation.  He violated probation in 1999 for a DUI; probation was reinstated on the same terms and conditions plus some additional jail time.  In 1999, he was convicted of spousal abuse and resisting arrest.  In 2000 and 2001, the defendant either missed required drug tests or tested positive for cocaine.  At the subsequent probation violation hearing, the court refused to refer the defendant to Proposition 36 and sentenced the defendant to state prison.  The Appellate Court reversed, stating that at the time the defendant admitted his violation, everyone was under the assumption that he was admitting the drug-related conditions of probation; his admission did not include the spousal abuse conviction. 

People v. Cantu (10-10-03, 6th Appellate District, H024717;  Depublished 1-14-04, Supreme Court Petition for Review Dismissed 10-13-04, CRC 29.3(b), S120585) 112 Cal App 4th 729
The defendant was convicted of both possession of methamphetamine and driving with a blood alcohol level of .08 percent or more.  The defendant was properly precluded from participation in Proposition 36 because the DUI offense was not a non-violent offense of possessing or being under the influence of drugs.

People v. Canty (5-27-04, Supreme Court, S109537) 32 Cal 4th 1266
The defendant pled guilty to transporting methamphetamine (a felony) as well as driving under the influence of methamphetamine (a misdemeanor).  She was not eligible for Proposition 36 since the act of impaired driving was not related to the possession or use of narcotics.

People v. Chatmon (5-23-05, 1st Appellate District, A104929; Supreme Court Petition for Review Denied, 8-31-05 S135152) 129 Cal App 4th 771
The defendant was charged with possession of cocaine and resisting a police officer.  The prosecutor dismissed the resisting an officer charge and the defendant pled no contest to cocaine possession.  He was placed on three years probation and 90 days jail as a condition of probation and waived his right to appeal the judgment.  When he later violated his probation, he waived his back credits, was given 180 days jail, and probation was reinstated.  The defendant appealed, claiming that he should instead have received Proposition 36 upon his probation violation.  The appellate court rejected his argument: he agreed to a disposition outside of Proposition 36 and, in exchange, he received a dismissal of a charge that would have precluded Proposition 36.   The defendant was not allowed to “trifle with the courts.”

People v. Dagostino (4-14-04, 5th Appellate District, F042059) 117 Cal App 4th 974
One of the terms of the defendant’s probation was that he enroll in and complete a drug treatment program “as determined by the Kern County Probation and Mental Health Departments.”  The defendant failed to meet with the representative of these departments.  This was held to be a violation of a drug-related condition of Proposition 36 probation, entitling the defendant to reinstatement in Proposition 36.

People v. Davis (1-7-03, 3rd Appellate District, C040635;  Supreme Court Petition for Review Denied 4-9-03, S113639) 104 Cal App 4th 1443
The defendant pled guilty to possession of methamphetamine in 1999.  As a condition of probation the defendant was ordered to attend and complete a drug court program.  He failed to appear in drug court and tested positive for narcotics usage in September, 2001; he was sentenced to state prison for violating his probation.  The appellate court reversed and found that the defendant was eligible for Proposition 36 since he had violated a drug-related condition of probation.

People v. DeLong (8-22-02, 2nd Appellate District, B152019;  Supreme Court Petition for Review Denied 11-13-02, S110032) 101 Cal App 4th 482 (see also In re DeLong, above)
Even though the defendant’s conviction was set aside for successful completion of her Proposition 36 treatment program, her appeal was not rendered moot.  She is still entitled to the opportunity to clear her name and avoid the collateral consequences still present notwithstanding her fulfillment of her conditions of probation.

People v. Dixon (11-7-03, 3rd Appellate District, C042734) 113 Cal App 4th 146
While on Proposition 36 probation, the defendant failed to comply with the probation conditions that she report to the probation officer as well as participate in a drug counseling program.  The defendant’s failure to report to the probation office was a non-drug-related violation of probation that authorized the court to terminate Proposition 36.

People v. Dobbins (2-28-05, 3rd Appellate District, C046381) 127 Cal App 4th 176
The defendant was placed on Proposition 36 probation and was subsequently arrested for using a knife while trying to rob a woman of a cigarette.  The judge revoked probation and sentenced the defendant to the previously-suspended sentence of 16 months state prison.  The appellate court held that Penal Code section 1203.2(b) required a supplemental probation report since the trial court had the discretion to reinstate the defendant on probation.  Under California Rule of Court 4.411c, and the advisory committee’s comments, a supplemental report should be ordered if “a significant period of time” (more than six months) had elapsed since the original sentencing report and the sentencing.  This error was deemed harmless since the defendant performed poorly on probation and the resulting sentence would have been the same.

People v. Dove III (11-15-04, 4th Appellate District, E033907; Supreme Court Petition for Review Denied, 2-2-05, S130014) 124 Cal App 4th 1
After a traffic stop the defendant was found to have approximately one ounce of rock cocaine in his pocket.  A jury found him not guilty of possession of cocaine base for sale, but guilty of simple personal possession as well as transportation of cocaine base.  The trial court was legally correct  in denying the defendant and sentencing him to state prison.  The court can still review the evidence and find, by a preponderance of the evidence, that the defendant did not possess or transport the drugs for personal use.

People v. Eribarne (12-16-04, 5th Appellate District, F044634; Supreme Court Petition for Review Denied, 3-30-05, S131009) 124 Cal App 4th 1463
The defendant pled guilty in 2003 to possession of methamphetamine.  He had a prior strike conviction, first degree burglary, in 1974.  Among other convictions, the defendant had a misdemeanor conviction in 1998 for Vehicle Code section 23152(b), driving with a blood alcohol level of .08 percent or higher.  The trial court was correct in denying Proposition 36 since 1) the defendant had a prior strike conviction, 2) he was convicted of Vehicle Code section 23152(b)  within the five-year “washout period,” and 3) a misdemeanor conviction of Vehicle Code section 23152(b) is an offense involving the threat of physical injury to another person.

People v. Esparza (4-1-03, 3rd Appellate District, C040863;  Supreme Court Petition for Review Denied 6-25-03, S115857) 107 Cal App 4th 691
The defendant was on formal probation for felony vandalism.  He violated his probation by being convicted of possession of methamphetamine.  The defendant was not eligible for Proposition 36 because the underlying offense for which the defendant was on probation was not drug related.

People v. Espinoza (4-14-03, 1st Appellate District, A100485;  Request for Supreme Court Depublication Denied 7-16-03, S116676) 107 Cal App 4th 1069
The defendant was convicted of possession of heroin.  While it would appear that he would qualify for Proposition 36, he was an illegal alien who had  been deported twice previously and would most likely be again deported.  The court held that Proposition 36 could be denied since it was unlikely the defendant would be able to complete the required drug-counseling program.

People v. Ferrando (2-13-04, 3rd Appellate District, C042104;  Supreme Court Petition for Review Denied  4-28-04, S123371) 115 Cal App 4th 917
The defendant was convicted by jury of multiple offenses, including possessing methamphetamine and marijuana as well as maintaining a place for the use or sale of methamphetamine (Health and Safety Code section 11366).  The trial court properly denied Proposition 36 treatment since maintaining a place for the use or sale of drugs involves more than the simple possession of drugs. 

People v. Floyd (7-21-03, Supreme Court, S105225) 31 Cal 4th 179
The defendant was convicted in September, 2000 and was found to have suffered five prior strike convictions. The defendant believed that he was eligible for Proposition 36 because his conviction was not yet final as of July 1, 2001.  The court held that a defendant is deemed “convicted” notwithstanding the fact that his case has not been affirmed on appeal.

People v. Foreman (1-31-05, 1st Appellate District, A105691) 126 Cal App 4th 338
The defendant was convicted of four separate counts of obtaining prescribed medication by presenting forged prescriptions for Vicodin in violation of Health and Safety Code section 11368.  Notwithstanding the defendant’s 20-year addition to heroin and Vicodin, the court held that forging or uttering a prescription is not a nonviolent drug possession offense within the meaning of Proposition 36.

People v. Fryman (9-10-03, H020743;  Supreme Court Remand to 6th Appellate District to reconsider in light of People v. Floyd, above, S107283) 4 Cal Rptr 3rd 702
The defendant was found guilty of being under the influence of cocaine.  He pled guilty to possession of cocaine base and having nine prior strike convictions.  The prospective-only provision of Proposition 36 was unconstitutional and in violation of equal protection.  Further, an unlawful touching does not automatically involve physical injury or an implied threat of injury.

People v. Garcia (6-7-02, 3rd Appellate District, C038797;  Depublished 8-28-02, Supreme Court Remand to Appellate Court 1-15-03, CRC 29.3(d), S108472, proceedings permanently abated because of defendant’s intervening death; 99 Cal App 4th 38
The defendant worked as a licensed vocational nurse at a nursing home.  He stole drugs and ingested them.  He was charged with possession of a controlled substance and petty theft.  The court accepted his claim that he was eligible for Proposition 36 since the sole purpose of the theft was to obtain the narcotics.

People v. Garcia (11-27-02, 5th Appellate District, F039327;  Depublished 2-11-03, Supreme Court Review Dismissed, CRC 29.3(b) 10-13-04, S112688) 103 Cal App 4th 1228
The defendant pled guilty to transporting methamphetamine (a felony) as well as driving under the influence of methamphetamine (a misdemeanor).  He was not eligible for Proposition 36 since the act of impaired driving was not related to the possession or use of narcotics.

People v. Glasper (3-21-05, 6th Appellate District, H023404;  Supreme Court Petition for Review Denied, 2-18-04, S121092) 113 Cal App 4th 1104
The defendant was convicted of transporting cocaine base and was acquitted of possession for purpose of sale.  The defendant argued that the jury’s determination that he was not guilty of possession for the purpose of sale was the functional equivalent of a finding that the transportation was for personal use, entitling him to Proposition 36.  The trial court was correct in rejecting this argument, stating that the defendant did not meet his burden of proving that the drugs were possessed for personal use.

People v. Goldberg (1-31-03, 1st Appellate District, A097650) 105 Cal App 4th 1202
The defendant pled no contest to transporting methamphetamine (a felony) as well as driving under the influence of a controlled substance (a misdemeanor).  On a violation of probation, the defendant was not entitled to the benefits of Proposition 36 since he was convicted in the same proceeding of an offense not related to the use of drugs.

People v. Guzman (5-30-03, 2nd Appellate District, B160672) 109 Cal App 4th 341
The defendant was ordered to report to his community assessment service and probation officer as well as a drug counseling program as conditions of his Proposition 36 probation.  The defendant did not report to  the assessment center or the probation office or the treatment program.  Instead he voluntarily left the country.  When he returned, he again failed to report and was picked up on a bench warrant.  The trial court was correct in terminating the grant of Proposition 36 since the defendant, by his conduct, indicated that he would not participate in nor undergo drug treatment.

People v. Guzman (3-21-05, Supreme Court, S119129; Writ of Certiorari denied, 10-3-05, 126 S. Ct. 144)  35 Cal 4th 577
The defendant was on probation for felony inflicting corporal injury on a cohabitant and battery on a police officer.  He later pled guilty to possession of methamphetamine and being under the influence.  The defendant was denied Proposition 36, his probation was terminated, and he was sentenced to state prison.  The Appellate court said this was unconstitutional since a similarly-situated individual on parole, instead of probation, would be allowed to participate in Proposition 36.  The Supreme Court reversed and held that the defendant may be denied Proposition 36 since he violated his grant of probation in a case that was not a non-violent drug possession offense.  Probationers and parolees may be treated differently under the language of Penal Code section 1210.

People v. Hinkel (1-11-05, 3rd Appellate District, C046395; Supreme Court Petition for Review Denied, 4-13-05, S131420) 125 Cal App 4th 845
The defendant pled no contest to possession of cocaine base and being under the influence of cocaine.  After falling off of Deferred Entry of Judgment, he was allowed to participate in Proposition 36 treatment.  The defendant was terminated from one program (for making threats), and the court allowed him to complete his regimen of treatment in another program.  The defendant subsequently requested that the trial court dismiss the charges, expunge his conviction and terminate his probation for successful completion of Proposition 36.  The trail court denied the request, finding that “there is no reasonable cause to believe the defendant will not abuse controlled substances in the future.”  The trial court used the correct standard in rejecting the defendant’s request; merely completing the drug counseling program is not enough to warrant a dismissal.

People v. Johnson (12-12-03, 4th Appellate District, D041023;  Supreme Court Petition for Review Denied, 3-17-04, S122054) 114 Cal App 4th 284
The defendant was given Proposition 36 after being convicted of possession of cocaine base.  She repeatedly violated her grant of probation and was ultimately sent to state prison.   The defendant had a prior violent felony conviction.  She was properly sentenced to state prison since her repeated failure to report to the probation officer was not drug-related. 

People v. Kendrick (10-4-04, 5th Appellate District, F044059, Supreme Court Petition for Review Granted/Briefing Deferred, CRC 29.1, 1-19-05, S129294) 122 Cal App 4th 1305
The defendant was initially charged with possession of cocaine for sale and transportation of cocaine.  The information was amended and the defendant pled guilty to Health and Safety Code section 11350(a), possession of cocaine.  He agreed that if he returned for sentencing he would receive no more than two years state prison, and if he did not return he could receive up to three years in prison.  He failed to return and, when later apprehended, was sentenced to three years state prison.  The appellate court rejected the defendant’s claim that the trial court was required to give the defendant Proposition 36.  Even if the defendant is eligible for Proposition 36, he may elect to not participate in drug counseling and will then be sentenced under the determinate sentencing law.

People v. Legault (1-11-02, 4th Appellate District, E028707; Supreme Court Petition for Review Denied 4-10-02, S104506) 95 Cal App 4th 178
The defendant was convicted and sentenced for possession of cocaine seven months before the effective date of July 1, 2001.  The defendant was not entitled to participate in Proposition 36 treatment because the new law is prospective only and he was convicted and sentenced prior to the effective date.

People v. Martinez (3-28-05, 2nd Appellate District, B170558;  Supreme Court Petition for Review Denied, 6-29-05, S133715) 127 Cal App 4th 1156
The defendant was placed on Proposition 36 probation for possession of methamphetamine.  Another court found that he had violated his probation by trying to cash a fraudulent check and sentenced the defendant to state prison.  The appellate court affirmed the sentence, stating that the defendant did not have the right to have the same court that put him on probation also hear his probation violation.  Even though the probation violation was only his second one, Proposition 36 could be terminated since it was not drug-related.

People v. Mendoza (3-6-03, 2nd Appellate District, B158663;  Supreme Court Petition for Review Denied 5-14-03, S114923) 106 Cal App 4th 1030
The defendant pled guilty in 1997 to possession of a controlled substance.  He failed to appear for his scheduled sentencing.  The defendant was arrested in 2002 and asked to be sentenced pursuant to Proposition 36.  The court rejected this request.  Proposition 36 was to apply to prospective “convictions” after July 1,2001.   As used in the law, the defendant was still convicted prior to its effective date even though he had not yet been sentenced.

People v. Moniz (6-6-06, 3rd Appellate District, C048738) 140 Cal App 4th 86
The defendant was a passenger in a car and he was found guilty by a jury of possessing and transporting heroin and methamphetamine, possession of drug paraphernalia, and destroying or concealing drug evidence (Penal Code section 135).  The trial court was correct in rejecting the defendant’s request for Proposition 36.  The focus of section 135 is to prevent the concealing or destruction of evidence; it is not a misdemeanor relating to drugs since one can possess drugs without the additional act of concealing them and obstructing justice.

People v. Muldrow (11-14-06, 5th Appellate District, F048923) 144 Cal App 4th 1038
While on parole, the defendant was convicted of possession of methamphetamine.  The defendant was sentenced to state prison and Proposition 36 treatment was denied since it was expected that the defendant would be returned to state prison on a parole violation and would be unavailable for treatment.  The appellate court reversed, stating that it was not a foregone conclusion that the defendant would be returned to state prison on the currently-unproven allegations.  The defendant was in a different position from “an undocumented alien facing a substantial likelihood of imminent deportation.”

People v. Murillo (10-23-02, 4th Appellate District, E030638;  Supreme Court Petition for Review Denied  1-15-03, S111786) 102 Cal App 4th 1414
The defendant pled guilty in 1999 to felony possession of methamphetamine.  On multiple occasions in 2000-2001 he was found in violation of drug-related conditions of probation.  In November, 2001 the defendant stated that she was eligible for Proposition 36 treatment for a September, 2001 drug-related violation of probation.  The appellate court agreed, finding that the change in the law superseded the 1999 agreement that the defendant would receive 16 months state prison upon a probation violation.

People v. Orabuena (2-25-04, 6th Appellate District, H025987) 116 Cal App 4th 84
The defendant was arrested and charged with possessing .55 grams of methamphetamine in his pants pocket, being under the influence of a controlled substance, and also with driving while his privilege to drive was suspended or revoked.  The suspended license charge is not related to the use of drugs and it excludes defendant from participating in Proposition 36.  The trial court has the authority under Penal Code section 1385 to exercise its discretion and dismiss the non-drug offense and allow the defendant to participate in Proposition 36.

People v. Sharp (10-29-03, 3rd Appellate District, C039242) 112 Cal App 4th 1336
The defendant was charged with multiple offenses: cultivating marijuana, possession of marijuana for sale, and being armed in violation of Penal Code section 12022(a)(1).  He entered a no contest plea to cultivating 37 marijuana plants after the denial of his motion to suppress.  The court held that the defendant was not entitled to Proposition 36 because 1) cultivation was specifically excluded under Penal Code section 1210(a), and 2) cultivation did not constitute possession, use or transportation for personal use of a controlled substance.

People v. Strong (3-13-06, Appellate Department, Ventura County Superior Court; Supreme Court Petition for Depublication Denied, 5-7-06, S142776) 138 Cal App 4th Supp 1
The defendant pled no contest to being under the influence of a controlled substance and was given Deferred Entry of Judgment (DEJ).  The defendant did not report to his probation officer, did not attend a drug counseling class, and did not submit to drug testing.  He was picked up one year after a bench warrant was issued.  The reviewing court agreed with the trial court’s refusal to refer the defendant to Proposition 36.  It stated that DEJ is the same as probation and by not doing anything the defendant has rejected drug treatment while on probation.

People v. Superior Court (Henkel) (5-2-02, 1st Appellate District, A096715) 98 Cal App 4th 78
If a defendant has a prior strike conviction, the “five-year washout period” means the five years immediately preceding the current drug offense.

People v. Superior Court (Jefferson) (4-9-02, 4th Appellate District, E030590) 97 Cal App 4th 530
If a defendant has a prior strike conviction, the “five-year washout period” means the five years immediately preceding the current drug offense.

People v. Superior Court (Martinez) (12-19-02, 6th Appellate District, H023966) 104 Cal App 4th 692
If a defendant has a prior strike conviction, the “five-year washout period” means the five years immediately preceding the current drug offense.

People v. Superior Court (Turner) (4-24-02, 2nd Appellate District, B156011; Supreme Court Petition for Review Denied 7-10-02, S107133) 97 Cal App 4th 1222
If a defendant has a prior strike conviction, the “five-year washout period” means the five years immediately preceding the current drug offense.

People v. Tanner (5-10-05, 4th Appellate District, D043571) 129 Cal App 4th 223
In July, 2003, the defendant, a parolee,  was placed on a formal grant of
probation with Proposition 36 terms and conditions.  At a probation violation hearing in August, 2003 he was found to have suffered two violations of probation: by being discharged from his program in August, 2003 and testing positive for drugs in court three days later.  At a review hearing in October, he admitted the violations of being discharged from a second program for excessive absences and one failure to test, being $100 in arrears in his treatment fees, and testing positive for methamphetamine at the probation office.  The court found he had committed his third and fourth violations and sentenced him to state prison.  In reversing, the appellate court held that, to revoke a defendant’s probation,  a defendant has a right to three noticed motions for drug-related violations.  The trial court was incorrect in counting the number of violations rather than the number of times the state had moved to revoke the defendant’s probation.

People v. Thurman (1-26-05, 3rd Appellate District, C044448; Supreme Court Petition for Review Denied, 5-11-05, S131778) 125 Cal App 4th 1453
The defendant pled guilty to possession of cocaine and was granted Proposition 36 probation on the conditions that he complete a drug treatment program and waive residential treatment custody credits to which he would be entitled under Penal Code section 2900.5(a).  The appellate court approved of this condition since Section 1210.1(a) states: “Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose.”  The defendant is given an “incentive” to complete the residential program, receives drug treatment at the state’s expense, and avoids being confined in jail or prison.

People v. Tilehkooh (12-8-03, 3rd Appellate District, C040485) 113 Cal App 4th 1433 
The defendant’s probation was revoked because his probation officer had found the defendant in possession of marijuana at the defendant’s home.  The defendant had a physician’s statement that he was medically entitled to possess the marijuana.  The trial court refused to allow the defendant to present a medical marijuana defense to the charged violation of probation.  The Appellate Court reversed, stating that Health and Safety Code section 11362.5 provides a defense to a probation revocation based on marijuana possession or use.

People v. Walters (11-19-02, 2nd Appellate District, B158090;  Depublished 1-22-03, Supreme Court Review Dismissed 10-13-04, CRC 29.3(b), S112291) 103 Cal App 4th 936
The defendant was convicted of driving under the influence of a controlled substance.  This was more that the “simple possession or use of drugs” and the defendant was not eligible to participate in Proposition 36 for the possession of methamphetamine charge.

People v. Wandick (1-23-04, 3rd Appellate District, C040921) 115 Cal App 4th 131
During a booking search following his non-drug arrest, the defendant was found in possession of cocaine base.  While pending trial on the drug case, the defendant committed a grand theft.  In denying Proposition 36 treatment, the court stated that the defendant was not the individual whom the voters intended to receive rehabilitative drug treatment.  The court was not required to apply the provisions of Proposition 36 where the defendant was convicted of and sentenced to state prison for grand theft.  This would conflict with the intention of the statute.

People v. Wells (9-10-04, 5th Appellate District, F043125; Depublished, Petition for Supreme Court Review Granted, 12-15-04, S128640) 122 Cal App 4th 155
The defendant was arrested for driving under the influence of a controlled substance and being in possession of heroin.  The trial court was correct in refusing to give the defendant Proposition 36 since driving a vehicle under the influence of a controlled substance was a misdemeanor that was not related to the possession or use of narcotics.

People v. Westbrook (7-19-02, 2nd Appellate District, B158267) 100 Cal App 4th 378
The defendant had a sustained petition as a juvenile for robbery.  The appellate court found that Welfare and Institutions Code section 203 prevented a juvenile delinquency wardship from being considered a conviction; thus,  the defendant was eligible for Proposition 36 treatment because he had not been “convicted” of a serious or violent felony.

People v. Wheeler (3-22-05, 3rd Appellate District, C045860; Supreme Court Petition for Review Denied, 6-22-05, S133528) 127 Cal App 4th 873 
The defendant was seriously addicted to Vicodin and pled guilty to violating Health and Safety Code section 11368, which alleged that he unlawfully forged, altered, and issued a prescription bearing a forged and fictitious signature for a narcotic drug.  The court correctly denied Proposition 36 treatment since the forging of the prescription, even if it was done to obtain narcotics for personal use, did not come within the meaning of Penal Code section 1210(a) that provided treatment for a “nonviolent drug possession offense.”

People v. Williams (2-27-03, 1st Appellate District, A096823;  Supreme Court Petition for Review  Denied 5-14-03, S114924) 106 Cal App 4th 694
The defendant pled no contest in 1999 to possession of cocaine base.  He had repeated violations of probation, all occurring prior to July 1, 2001.  The court held that sentencing courts are required to consider a defendant’s pre-Proposition 36 failures on probation.  Since the defendant here had more than two failures, the trial court was within its rights to reject Proposition 36 and send the defendant to state prison. 

Trumble v. Superior Court (11-2-02, 4th Appellate District, D039990; Depublished 1-29-03, Supreme Court Petition for Review Denied 10-13-04, CRC 29.3(b), S112339)  103 Cal App 4th 1011
The defendant pled guilty to possession of a controlled substance (a felony) and to driving under the influence of drugs (a misdemeanor).  The defendant was not eligible for Proposition 36 because she was convicted in the same proceeding of a misdemeanor not related to the use of drugs.

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