Volume II, Number 2
Klein's Korner Column: Police Recording of Jail Telephone Calls, or "Hello, I Must Be Going"
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.
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.
If the defendant is an illegal alien who had previously been deported and is likely to again be deported, Proposition 36 may be denied since he would not complete the required drug treatment program.
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.
An individual who has a parole hold while at the time of conviction of a new drug possession offense may still be granted Proposition 36 as the defendant had not been committed to state prison on different offenses.
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.
1) Defendant has at least one prior strike conviction, unless the defendant has remained free of prison custody for the past five years and has not committed any felony other than a nonviolent drug possession offense or any misdemeanor involving physical injury or the threat of physical injury to another person;
The five-year washout period begins when the defendant committed the prior disqualifying felony, not when he was convicted of that felony.
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.
2) A defendant who is convicted in the same proceeding of any felony or misdemeanor not related to the use of drugs;
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.
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 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.
Probation may be revoked if the alleged violation is proved by clear and convincing evidence.
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.
The defendant is entitled to credit against any sentence for any time spent in residential treatment as a condition of Proposition 36 probation.
Merely completing the program does not require a dismissal if there is reasonable cause to believe the defendant will abuse controlled substances in the future.