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MCLE Self Study
California's Drug Initiative
By Alex Ricciardulli

Edited by Barbara Kate Repa
Category: Special Credit - Substance Abuse

        A dramatic departure from previous sentencing laws, California's Substance Abuse and Crime Prevention Act requires that defendants convicted of nonviolent drug possession offenses be sentenced to probation and drug treatment instead of incarceration. (Cal. Penal Code § 1210.1(a).)
        The law was passed in November 2000 by 61 percent of the California voters as Proposition 36. Thousands of people have been sentenced under Prop. 36-more than 8,000 in Los Angeles County alone-in its first year of operation. But the new law remains highly controversial, with many judges and prosecutors complaining that it is soft on defendants. Historically, many statutes have barred judges from granting defendants probation. (See, Cal. Penal Code § 1203.06 (probation barred for using a firearm in specified cases, such as murder and aggravated sex crimes).) Unlike previous diversion schemes, in which a judge could exclude an otherwise eligible defendant by determining he or she was unsuitable for a drug program, a defendant who qualifies under Prop. 36 must be given probation and drug treatment-regardless of the circumstances of the crime or the defendant's potential for rehabilitation. Given the importance of the drug initiative, it behooves all practitioners handling narcotics cases to be familiar with the basics of this law. Many of the drug statute's provisions have already been authoritatively interpreted by appellate courts; others remain in flux.
        Crimes Qualifying for Special Treatment
        Prop. 36 applies only to nonviolent drug possession offenses. (Cal. Penal Code § 1210.1(a).) It includes both felonies and misdemeanors. The term nonviolent drug possession offense is defined as unlawful possession, use, or transportation for a defendant's personal use of a controlled substance (Cal. Health & Safety Code § 11054-58) and the offense of being under the influence of a controlled substance. (Cal. Health & Safety Code § 11550.) All common drugs are included-such as cocaine, marijuana, and methamphetamine. But the statute excludes possessing for sale, producing, or manufacturing any controlled substance, along with possessing drugs in prison or jail. (Cal. Penal Code §§ 1210(a), 4573.6, and 4573.8.)
        Splits on Retroactivity
        There is a split regarding whether Prop. 36 should apply retroactively. One appellate court held that it applies to cases in which the offense was committed before July 1, 2001, so long as the sentence was imposed on or after that date. (In re DeLong, 93 Cal. App. 4th 562, 567-71 (2001).) Another opinion agreed with DeLong and held that Prop. 36 applies to defendants who were granted deferred entry of judgment, also known as DEJ (Cal. Penal Code § 1000)-the other major alternative sentencing scheme for narcotics offenses-but for whom sentence was imposed on or after July 1, 2001. (In re Scoggins, 94 Cal. App. 4th 650, 657-58 (2001).) However, the court of appeal in People v. Mendoza held that a defendant can be eligible for Prop. 36 only if he or she committed the drug offense on or after July 1, 2001. (106 Cal. App. 4th 1030, 1034 (2003).) The California Supreme Court was not helpful in resolving this split; it denied review in all three cases.
        For some time there was also a difference of opinion regarding whether Prop. 36 applied to people who committed drug offenses and were sentenced before July 1, 2001. In People v. Fryman one appellate court held that Prop. 36 applied to cases in which the defendant was convicted and sentenced before July 1, 2001, so long as the conviction had not become final. (97 Cal. App. 4th 1315 (2002); transferred to court of appeal for reconsideration in light of Floyd, #02-131, Sept. 9, 2003.) That court reasoned that excluding nonviolent drug offenders from treatment simply due to the fortuity of the date of conviction was not justified by, or necessary to further, a compelling state interest, and it denied equal protection.
        The court of appeal in People v. Legault (95 Cal. App. 4th 178 (2002)) reached a result contrary to that in Fryman. The California Supreme Court intervened-not in the defendants' favor-and superseded Fryman, holding that Prop. 36 does not apply to defendants who were sentenced before July 1, 2001, and that this does not violate any of the defendants' constitutional rights. (People v. Floyd, 31 Cal. 4th 179 (2003).)
        Disqualified Defendants
        Even if a defendant commits a drug-possession crime that fits under Prop. 36-and is not excluded due to the date the crime was committed-there are still several hurdles that the individual who wishes to receive drug treatment must surmount. Specifically, five factors disqualify a person from being sentenced under Prop. 36. (Cal. Penal Code § 1210.1(b)(1)-(5)):
        -use of a firearm during a drug crime,
        -"strike priors"-convictions for one or more serious felonies,
        -a current drug conviction accompanied by a current conviction for a nondrug offense,
        -refusal of drug treatment as a condition of probation, and
        -prior participation in two other Prop. 36 programs.
        The two most common factors are strike priors and drug-plus-non-drug convictions.
        As mentioned, defendants who were previously convicted of one or more serious or violent felonies, also known as strike priors, are excluded from Prop. 36. (Cal. Penal Code § 1210.1(b)(1).) There is an exception for a defendant who commits a nonviolent drug-possession offense after being free for five years of both prison custody and a felony conviction or a misdemeanor conviction involving actual or threatened physical injury to another person. Only the five years immediately before the drug charge count in calculating this washout period. (People v. Superior Court (Jefferson), 97 Cal. App. 4th 530 (2002).)
        However, not all strike priors count: Juvenile adjudications, which would otherwise count as strikes, will not disqualify a defendant. (People v. Westbrook, 100 Cal. App. 4th 378 (2002).) But if a strike prior is alleged, and it is not washed out by the five-year period, the defendant is stuck: A judge cannot override the exclusion by dismissing the prior. (In re Varnell, 30 Cal. 4th 1132 (2003).) On the other hand, a judge can dismiss one or more priors in furtherance of justice and sentence the defendant to regular probation, which could include drug treatment. (Id., at p. 1141, fn. 5.)
        A defendant is also ineligible for Prop. 36 if, in the same proceeding as the drug crime, he or she is convicted of any felony or nondrug misdemeanor not "related to the use of drugs." (Cal. Penal Code § 1210.1(b)(2).) Included misdemeanors are those that do not involve the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, the failure to register as a drug offender, or any activity similar to these. (Cal. Penal Code § 1210 (d).)
        Precisely what crimes are related to the use of drugs is up in the air. Several cases have dealt with the common question of whether driving under the influence of drugs is an included misdemeanor. Defendants in several cases have been convicted in the same proceeding of driving under the influence of drugs and possessing drugs found on them following the arrest for the driving offense. The appellate courts have uniformly ruled that the defendants were ineligible for Prop. 36 probation because the crime of driving under the influence of drugs was not a misdemeanor "related to the use of drugs." (See, People v. Canty, 100 Cal. App. 4th 903, rev. granted, 126 Cal. Rptr. 2d 536 (2002); People v. Garcia, 103 Cal. App. 4th 1228, rev. granted, 130 Cal. Rptr. 2d 660 (2003).)
        This is another area in which the California Supreme Court has granted review and should eventually settle the divisions of the lower courts.
        Sentencing Defendants to Prop. 36
        If a defendant is convicted of an offense that falls within Prop. 36 and is not disqualified as described above, a judge must sentence that defendant to probation and drug-treatment without any time in custody. (Cal. Penal Code § 1210.1(a).) Still, Prop. 36 is not a complete straitjacket for the court: The judge gets to pick the intensity of the drug-treatment regimen, which may include ordering a defendant into a residential program. (Cal. Penal Code § 1210(b).) Moreover, other than the limitation of keeping the defendant free and requiring a drug program, the statute is clear that "the trial court is not otherwise limited in the type of probation conditions it may impose." (Cal. Penal Code § 1210.1(a).) Such conditions could include orders that defendants agree to submit themselves and their personal effects to search or seizure without a warrant.
        Sentencing under Prop. 36 is thus markedly different than procedures followed with DEJ. A judge has full discretion to find a defendant unsuitable for DEJ and keep him or her off the program (Cal. Penal Code § 1000.1(b)); however, a judge must sentence an otherwise-eligible defendant to Prop. 36. On the other hand, a judge cannot impose search and seizure conditions on a defendant participating in DEJ (Terry v. Superior Court, 73 Cal. App. 4th 661 (1999)) but can impose such conditions of probation under Prop. 36.
        Kicking Defendants Off Prop. 36
        Once a defendant is sentenced to Prop. 36, the question arises of precisely how a judge can revoke probation and exclude him or her from treatment. Understanding the probation-revocation procedures is critical because if probation is ever permanently revoked in a case, the judge is free to impose a custodial sentence, including prison in felony cases. (See, Cal. Penal Code § 1210.1(e)(1).)
        The probation-revocation scheme is the same for defendants who were sentenced to probation for drug offenses before and after Prop. 36's operative date of July 1, 2001. (See, Cal. Penal Code § 1210.1(e)(3)(A), (D).) The first question in a probation-violation case is whether or not the violation is related to using or possessing drugs. If the violation is not drug-related, then the court is free to handle the case the same as any other matter outside Prop. 36. (Cal. Penal Code § 1210.1(e)(2).) If it is drug-related, special procedures apply.
        For probation violations that are drug-related, a three-tiered scheme is set forth. Depending on whether the violation is the defendant's first, second, or third, a judge may or may not be able to revoke probation and put the person behind bars. Upon a defendant's first violation, probation may only be revoked if the alleged probation violation is proved and the state establishes by a preponderance of the evidence that the defendant poses a danger to the safety of others. (Cal. Penal Code § 1210.1(e)(3)(A).) On a defendant's second violation, probation may only be revoked if the alleged probation violation is proved and the state shows by a preponderance of the evidence that the defendant poses a danger to the safety of others or is not amenable to drug treatment. (Cal. Penal Code § 1210.1(e)(3)(B).) Finally, on a third violation, even if it is not shown that a defendant poses a danger to the safety of others or is not amenable to drug treatment, the court has full power to revoke probation and impose a sentence of jail or prison. (People v. Davis, 104 Cal. App. 4th 1443 (2003).)
        The Carrot at the End of the Stick
        A person who successfully completes drug treatment under Prop. 36 can be rewarded by having the conviction expunged. (Cal. Penal Code § 1210.1(d).) Nonetheless, the conviction remains on the person's record for a number of purposes: It still bars him or her from owning concealable firearms. (Cal. Penal Code § 1210.1(d)(2).) And the drug conviction must be disclosed when applying for public office or for a position as a peace officer, for licensure with a state agency, for contracting with the California State Lottery, and for serving on a jury. (Cal. Penal Code § 1210.1(d)(3).)
        The expungement provision highlights another important difference between DEJ and Prop. 36. When a person successfully completes a DEJ treatment program, the judge must dismiss the case. (Cal. Penal Code § 1000.4(a).) Yet under Prop. 36, the judge is given discretion to dismiss only if he or she "finds that the defendant successfully completed drug treatment and substantially complied with the conditions of probation." (Cal. Penal Code § 1210.1(d)(1).) A defendant who finished treatment under Prop. 36, but only after failing a couple of times and being reinstated, might find that the judge is reluctant to erase the conviction.
        Alex Ricciardulli ( is a Los Angeles County deputy public defender specializing in appellate cases and an adjunct professor at Loyola and USC Law Schools.

        And The Bleat Goes On ...
        As happens when most touchy topics are raised these days, California's Substance Abuse and Crime Prevention Act ignited vitriolic debates in the faceless forum of the Internet. Three years after its passage, friends and foes of the measure still weigh in regularly to post their cyberviews. A few of the informative sites in the surf include:
        -National Families in Action: A Guide to Drug-Related State Ballot Initiatives ( collects views of proponents applauding the proposition's humane intervention and opponents predicting doom for existing drug courts.
        -UCLA's Neuropsychiatric Institute ( reports recent findings from an evaluation of the more than 30,000 drug offenders in treatment during the act's first year.
        -What You Need to Know about Alcoholism/Substance Abuse (http://_alcoholism. hosted by Buddy T, who identifies himself as "in recovery from the experience of living with an alcoholic," gives a summary of the law and chatrooms, forums, articles, and resources on substance abuse.
        -Substance Abuse and Crime Prevention Act of 2000 ( offers a statistical summary of the county programs implementing the act, plans for spending, and projections for future services.
        --Compiled by Barbara Kate Repa

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