The Criminal Docket


    November 2007

Volume II, Number 4  

TELEPHONE: (562) 804-8045

Proposition 36 Analysis:
      Part I: All Cases Through November 2007       
Part II: Reference Guide: Cases and Penal Code
      November 2007 Update

 Proposition 36 Reference Guide
 (As of November, 2007)     
 (Part 2)


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) 
People v. Davis (2003) 104 Cal App 4th 1443
People v. Murillo (2002) 102 Cal App 4th 1414
People v. Sharp (2003) 112 Cal App 4th 1336
People v. Walters (2002, Depub. 2003) 103 Cal App 4th 936  


Individuals are excluded if convicted of possession for sale, or manufacturing any controlled substance, or transportation for non-personal use.

Penal Code Section 1210(a)

The burden is on the defendant to prove by a preponderance of the evidence that the transported drugs were for his own use.

People v. Barasa (2002) 103 Cal App 4th 287
People v. Dove (2004) 124 Cal App 4th 1
People v. Glasper (2003) 113 Cal App 4th 1104

Misdemeanor charges that are not related to the use of drugs.

Penal Code Section 1210(d)
People v. Wells (2004, Depub; Rev. Grtd.) 122 Cal App 4th 155
People v. Esparza (2003) 107 Cal App 4th 691 
People v. Moniz
(2006) 140 Cal App 4th 86


If the offense occurred prior to July 1, 2001, the effective date of Proposition 36, the defendant must be convicted and sentenced after July 1, 2001 to be eligible for Proposition 36.

In re DeLong (2002) 93 Cal App 4th 562
In re Scroggins (2001) 94 Cal App 4th 650
People v. Legault (2002) 95 Cal App 4th 178
People v. Mendoza (2003) 106 Cal App 4th 1030

The prospective-only provision of Proposition 36 is unconstitutional (this holding is questionable).

People v. Fryman (2003, Remanded by Supreme Court for reconsideration)
97 Cal App 4th 1315

A defendant is “sentenced” before July 1, 2001, even if his case is still pending on appeal after July 1, 2001.

People v. Floyd (2003) 31 Cal 4th 179


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.

People v. Espinoza (2003) 107 Cal App 4th 1069

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.

People v. Guzman (2005) 35 Cal 4th 577

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.

People v. Muldrow (2006) 144 Cal App 4th 1038

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.

In re Jose Z. (2004) 116 Cal App 4th 953

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:

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.

Moore v. Superior Court of Sutter County (2004) 117 Cal App 4th 401

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.

People v. Eribarne (2004) 124 Cal App 4th 1463

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.

People v. Westbrook (2002) 100 Cal App 4th 378

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.

In re Varnell (2003) 30 Cal 4th 1132

The “five-year washout period” means the five years immediately preceding the current drug offense.

People v. Superior Court (Henkel) (2002) 98 Cal App 4th 78
People v. Superior Court (Jefferson) (2002) 97 Cal App 4th 530
People v. Superior Court (Martinez) (2002) 104 Cal App 4th 692
People v. Superior Court (Turner) (2002) 97 Cal App 4th 1222

2) A defendant who is convicted in the same proceeding of any felony or misdemeanor not related to the use of drugs;

People v. Ayele (2002, Depub. 2003) 102 Cal App 4th 1276
People v. Cantu (2003, Depub. 2004) 112 Cal App 4th 729
People v. Canty (2004) 32 Cal 4th 1266
People v. Ferrando (2004) 115 Cal App 4th 917
People v. Garcia (2002, Depub. 2003) 103 Cal App 4th 1228
People v. Goldberg (2003) 105 Cal App 4th 1202
Trumble v. Superior Court (2002, Depub. 2003) 103 Cal App 4th 1011

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.

People v. Orabuena (2004) 116 Cal App 4th 84

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.

People v. Chatmon (2005) 129 Cal App 4th 771

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.

People v. Garcia (2002, Depub.) 99 Cal App 4th 38

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.

People v. Foreman (2005) 126 Cal App 4th 338
People v. Wheeler (2005) 127 Cal App 4th 873

3) Defendants who use a firearm while possessing or being under the influence or cocaine, heroin, methamphetamine, or PCP;

In re Ogea (2004) 121 Cal App 4th 974

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. 
People v. Guzman (2003) 109 Cal App 4th 341
People v. Kendrick (2004, Review Granted) 122 Cal App 4th 1305
People v. Strong (2005) 138 Cal App 4th Supp 1
People v. Wandick (2004) 115 Cal App 4th 131

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.


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.

People v. Thurman (2005) 125 Cal App 4th 1453

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. 
Penal Code section 1210.1(f)

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.

In re Mehdizadeh (2003) 105 Cal App 4th 995
In re Taylor (2003) 105 Cal App 4th 1394

The defendant may present a medical marijuana defense at a probation violation hearing.

People v. Tilehkooh (2003) 113 Cal App 4th 1433

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.

People v. Campbell (2004) 119 Cal App 4th 1279

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.

People v. Dagostino (2004) 117 Cal App 4th 974.

Separate and distinct motions to revoke probation, filed by the People, may be heard in one violation hearing. 

People v. Budwiser (2006) 140 Cal App 4th 105

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.

Penal Code Section 1210.1(e)(1)
People v. Bowen (2004) 125 Cal App 4th 101
People v. Tanner (2005) 129 Cal App 4th 223
People v. Williams (2003) 106 Cal App 4th 694


Probation may be revoked if the alleged violation is proved by clear and convincing evidence.

Penal Code Section 1210.1(e)(2)
People v. Campbell (2003, Depub. 2003) 106 Cal App 4th 808
People v. Cano (2002, Depub. 2002) 97 Cal App 4th 1216
People v. Dixon (2003) 113 Cal App 4th 146
People v. Johnson (2003) 114 Cal App 4th 284
People v. Martinez (2005) 127 Cal App 4th 1156

The State has the burden of proof as to whether the violation is non-drug related.

People v. Atwood (2003) 110 Cal App 4th 805 

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. Dobbins (2005) 127 Cal App 4th 176 

The defendant is entitled to credit against any sentence for any time spent in residential treatment as a condition of Proposition 36 probation.

People v. Davenport (2007) 148 Cal App 4th 240 


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.

People v. Hinkel (2005) 125 Cal App 4th 845

The petition to terminate probation and dismiss the charges may be filed by the defendant, the defendant’s attorney, or the probation department.

Penal Code section 1210.1(d)(1)
People v. Hartley (2007) 2007 DJDAR 16641



Rule 29.3(b)(3) (Dismissal of review)

After an order dismissing review, the Court of Appeal opinion remains unpublished unless the Supreme Court orders otherwise.

Rule 29.3(d) (Transfer without decision)

After ordering review, the Supreme Court may transfer the cause to a Court of Appeal without decision but with instructions to conduct such proceedings as the Supreme Court orders.


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