Proposition 36
Category > Proposition 36
The provision of the Realignment Act that permits incarceration for nonviolent drug offenders is invalid because it improperly amends Prop 36.In 2000, the voters passes Prop 36 for the purpose of placing nonviolent drug offenders into treatment programs rather than custody. Under its terms, Prop 36 could only be amended by a two-thirds vote of both houses of the Legislature. In 2011, the Legislature enacted realignment legislation known as the Postrelease Community Supervision Act of 2011, which allows for local supervision rather than parole for nonviolent offenders including drug users. But it permits incarceration not provided for in Prop 36. Because the Realignment Act amended Prop 36 relating to nonviolent drug offenders, without a two-thirds vote from the Legislature, that portion (Penal Code section 3455) is invalid.id: 23967
Because the drug and nondrug offenses were not properly joined, defendant was entitled to Prop 36 probation on the drug offense. Proposition 36 outlines an "alternative sentencing scheme" for persons convicted of certain drug offenses and mandates probation in lieu of incarceration for most nonviolent drug offenders. The mandate does not apply to a defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. A conviction occurs in the "same proceeding" if the underlying charges are properly joined in the same accusatory pleading under section 954. Because the offenses here were not properly joined, defendant was entitled to Prop 36 probation.id: 22927
Provisions of a bill modifying Prop 36 by expanding incarceration potential for drug offenders were invalid.In 2006, the Legislature passed a bill that would modify certain portions of Prop. 36, which largely called for probation and treatment, with amendments that would allow for enhanced incarceration. However, the challenged sections of the bill cannot reasonably be construed to further the purposes of Prop. 36 and the bill’s provision for a popular vote if any of the bill was invalidated, was itself invalid.id: 21091
Defendant’s concurrent treatment for two drug offenses did not render him ineligible for Prop. 36 treatment.The trial court erred in ruling defendant was ineligible for Prop 36 probation because it found she had participated in two separate courses of drug treatment and was unamenable to drug treatment under Penal Code section 1210.1, subd.(b)(5). Contrary to the court’s ruling defendant’s concurrent treatment for two offenses did not satisfy the requirements. Moreover, the record did not establish that she was ineligible under subdivision (b)(4), where she was initially hostile towards residential treatment but there was no evidence that she completely refused drug treatment.id: 20569
The trial court erred by failing to impose Prop 36 probation where the jury specifically found the transportation was for personal use.Defendant was convicted of transportation of a controlled substance. The jury specifically found true that the transportation was for personal use within the meaning of Penal Code section 1210, subd.(a). There was no mention of Proposition 36 in the probation report or by either party at sentencing. However, without any applicable disqualification of his eligibility under section 1210, subd.(b), the trial court was required to grant Prop 36 probation. The failure to do so rendered the sentence unauthorized and the matter was remanded so that the trial court could impose the proper sentence.id: 20843
The trial court erred in finding the Prop 36 petitions were improperly prepared by the probation department.Defendants were on Prop 36 probation. The probation department prepared forms recommending the early termination of probation. Defendants signed the forms and appeared at the hearing on the petitions. The trial court denied the petitions without prejudice so that each defendant could prepare his or her own petition. However, under the circumstances, the defendants petitioned the court within the meaning of Penal Code section 1210.1, subd.(d)(1). The trial court erred in denying the petitions on the ground that they had been prepared and filed by the probation department.id: 19916
Sentencing court erred in refusing to credit defendant with 88 days spent in a drug treatment program as part of his Proposition 36 sentence.The trial court erred in ruling as a matter of law that time spent in a residential drug treatment center as part of a
Proposition 36 sentence cannot be credited against a subsequent prison term following probation revocation.id: 19476
The trial court erred by excluding defendant from Prop 36 treatment based solely on the expectation that he might be committed to prison on a parole violation.Defendant was convicted of drug possession. The trial court erred in finding that a parole hold and the expectation that he would be returned to prison on a parole violation made him ineligible for a drug treatment program under Penal Code section 1210.1.id: 19336
Defendant's appeal was not moot even though her conviction was set aside pursuant to Prop 36.Defendant's conviction for drug possession was set aside pursuant to Proposition 36 because she successfully completed the prescribed drug treatment program and fulfilled her probation conditions. Contrary to the Attorney General's argument, the dismissal under these conditions did not render defendant's appeal moot since the conviction still exists for some purposes and has certain collateral consequences, she is entitled to an opportunity to clear her name and rid herself of the stigma of criminality.id: 16995
A trial court may use section 1385 to dismiss a prior conviction to enable an otherwise ineligible defendant to qualify for sentencing under Prop 36.Because the language and ballot history of Proposition 36 lack the requisite clear directive to eliminate a trial court's traditional authority under Penal Code section 1385, the trial court may use that authority to dismiss a disqualifying prior strike allegation and thereby make a defendant eligible for Prop 36 sentencing. Since the trial court misunderstood the scope of its discretion in this regard, the matter was vacated with an order that it be reconsidered.id: 16626
Prop 36 does not apply to defendants who were sentenced before its effective date but whose convictions had not yet been affirmed on appeal.Proposition 36 became effective on July 1, 2001. The initiative applies to otherwise qualifying defendants who had not yet been sentenced on or before July 1, 2001. Defendant argued it should also include otherwise qualifying defendants who were sentenced before July 1, 2001, but whose cases had not yet been affirmed on appeal. However, the drafters of the initiative did not intend the term "conviction" to include an implied qualifier whose case has not been affirmed on appeal.id: 16674
Defendant's misdemeanor resisting arrest which occurred at the same time as his drug possession arrest disqualified him from Prop 36 treatment because it was not related to drug use.Defendant argued the trial court was required to grant him probation and place him in a drug treatment program under Penal Code section 1201.1, subd.(a) because his misdemeanor resisting arrest conviction in the same proceeding did not make him ineligible for probation. However, the misdemeanor offense involved conduct other than drug possession, and required proof that defendant willfully resisted arrest. While the conduct may have been motivated by his drug possession, the offense did not involve the use or possession of drugs for purposes of Prop 36.id: 17036
Court did not abuse its section 1385 discretion in denying motion to strike a misdemeanor offense that would qualify defendant for Prop 36 treatment due to his repeated failure to reform his conduct.The trial court did not abuse its discretion in denying the motion to strike the misdemeanor resisting arrest conviction which would have qualified defendant for Prop 36 treatment. Defendant had a history of drug sales as well as drug use. Despite numerous opportunities to reform his conduct through grants of parole and probation, he continued to use and sell drugs. Finally, the evidence showed defendant's five visits to Narcotics Anonymous were motivated by a desire to avoid incarceration rather than a genuine desire for rehabilitation.id: 17037
The driving under the influence of drugs charge rendered defendant ineligible to participate in treatment under Prop 36.The misdemeanor offense of driving under the influence of drugs involves more than the "simple possession or use of drugs." It requires the additional element of impaired driving and thus disqualified defendant from participation in treatment under Proposition 36. id: 17062
A defendant’s refusal of treatment in a prior case cannot be used to exclude him from Prop 36 treatment in a future case.A defendant’s refusal of drug treatment in a prior case or cases cannot be used pursuant to Penal Code section 1210.1, subd.(b)(4) to exclude her or her from Prop 36 drug treatment in a different case. While defendant squandered opportunities for drug treatment in past cases, the trial court erred in finding him ineligible for Prop 36 treatment without considering the possibility of treatment in the present case.id: 23352
The trial court had discretion to consider evidence regarding a conviction that was set aside under Prop 36 when deciding whether to grant a certificate of rehabilitation.Defendant moved for a certificate of rehabilitation regarding drug convictions in 1989 and 2000. The prosecution opposed the petition based on defendant’s more recent nonviolent drug offense in 2007 for which he received the benefit of Prop 36 probation. Defendant argued, and the trial court agreed, that because the 2007 conviction was set aside after he successfully completed the Prop 36 probation, the offense could not be considered on the issue whether to grant the certificate of rehabilitation. However, the trial court had the discretion to receive evidence regarding the conduct that resulted in his arrest and conviction for the 2007 offense. The trial court abused its discretion in granting the certificate of rehabilitation.id: 22981
The trial court did not err by terminating defendant’s Prop 36 probation where defendant made no effort to comply with the treatment requirement. Defendant pled guilty to drug possession and the court placed him on Prop 36 probation. The trial court did not later err by terminating probation and imposing a state prison sentence where defendant failed to report to probation or enroll in a treatment program, effectively refusing drug treatment as a probation condition. id: 22103
The trial court did not err in finding defendant was not eligible for Prop 36 treatment following his guilty plea for bringing drugs into jail. The crime of willfully bringing a controlled substance into a jail facility in violation of Penal Code section 4573 does not meet the statutory definition of a “nonviolent drug possession offense” as required for treatment under Prop 36. id: 22372
The authorized medical use of marijuana cannot as a matter of law render a defendant unamenable for treatment under Prop 36. Although the medical use of marijuana may be considered by the court in establishing the terms and conditions of probation under Prop 36, and in crafting the treatment to be provided, the authorized use of medical marijuana does not by itself make a nonviolent drug offender unamenable to the treatment mandated by Prop 36. id: 21375
Defendant who refused drug testing as a condition of deferred entry of judgment was ineligible for Prop 36 probation.Defendant refused drug treatment as a condition of deferred entry of judgment under Penal Code section 1000. This refusal made him ineligible for probation under Proposition 36.id: 21507
Defendant did not dictate the terms of his probation and the trial court did not err in allowing him to “opt out” of Prop. 36 probation.Defendant argued the trial court erred when it allowed him to “opt out” of his Prop. 36 probation. However, defendant was not allowed to dictate the terms of his probation. The court determined he was unamendable to Prop. 36 treatment after his repeated failure to comply with the conditions. While the defendant expressed a desire to opt out and accept regular
probation, it was the court’s decision.id: 21070
Because the cocaine possession was a straight felony rather than a wobbler, the trial court lacked the authority to reduce it to a misdemeanor after the successful completion of Prop. 36 probation.Defendant pled guilty to possession of cocaine under Health and Safety Code section 11350, which is a straight felony. After the successful completion of Prop 36 probation, he argued the offense should be reduced to a misdemeanor since he could not be sentenced to state prison. However, because section 11350 is a straight felony, and not a wobbler, the trial court lacked the authority to reduce the offense to a misdemeanor.id: 20785
The trial court erred in revoking defendant's Prop 36 probation based on a single petition which included three alleged violations.The trial court abused its discretion in revoking defendant's Prop 36 probation because the three alleged probation violations were considered a single violation where they were effectively presented to the court as part of a single noticed motion.id: 20098
Prop 36 applied to a defendant found guilty prior to the initiative's effective date, but not sentenced until afterwards.Proposition 36 applies to defendants convicted on or after July 1, 2001. "Conviction" within the meaning of Penal Code section 1210.1 means adjudication of guilt and sentencing. Therefore a defendant found guilty before the initiative's effective date of July 1, 2001, but not sentenced until afterwards, was convicted after the effective date and comes within the ambit of Prop 36.id: 16547
Defendant's Prop 36 probation can only by revoked after three noticed revocation petitions.Proposition 36 usually allows eligible drug users three chances at probation before a defendant is sent to prison, although the relevant statutes do not guarantee this result. Defendant's second and third probation revocation petitions were adjudicated at the same time, and the facts supporting the third petition took place before the second petition was filed. Under the structure and spirit of Prop 36, defendant is entitled to three distinct periods of probation before he can be found inedible.id: 19977
Defendant who was on probation for non-qualifying offenses and commited a nonviolent drug possession offense was eligible for Prop 36 probation.A defendant who is found to have committed a nonviolent drug possession offense is eligible for Proposition 36 probation if, at the time of the commission of the nonviolent drug possession offense, he was on probation for other, non-qualifying offenses.id: 19406
Defendant's conviction for concealing evidence rendered him ineligible for Prop 36 treatment.Defendant's conviction for concealing evidence under Penal Code section 135 was not a misdemeanor related to the use of drugs within the meaning of section 1210, subd.(g), Therefore, the court did not err in finding he was ineligible for Prop 36 treatment.id: 19097
The trial court did not violate Prop 36 or due process by conducting one hearing on two probation revocation petitions.Defendant argued his procedural rights under Prop 36 and his due process rights were violated where the court conducted only one hearing on two probation revocation petitions. However, the court did not err in conducting a single hearing to adjudicate the two separate probation violations and the resultant petitions to revoke probation.id: 19098
Revocation of Prop 36 probation based upon drug related violations of probation conditions requires that the prosecution make three noticed motions.The Proposition 36 statutory scheme requires the state to make three noticed motions before a trial court can properly revoke probation based solely upon drug related violations of probation conditions. The failure of the prosecution to do so rendered the revocation of defendant's Prop 36 probation improper. Finally, defendant did not waive his right to challenge the improper revocation of his Prop 36 probation by failing to make the objection in the trial court since the trial court and all counsel were operating under the mistaken belief that probation would automatically be revoked once he was found to have three drug related violations.id: 18534
Prop 36 does not violate equal protection principles since a probationer who commits a nonviolent drug possession offense (NDPO) while still on probation for a non-NDPO is not similarly situated to a parolee who commits a NDPO after completing a prison term for the non-NDPO.Proposition 36 requires that the courts order probation and community-based drug treatment rather than incarceration for people who commit nonviolent drug possession offenses. Defendant argued the Act violates equal protection by failing to make the probation requirement applicable to defendants who commit NDPO's while on probation for offenses that are non-NDPO's. However, a probationer like defendant who commits a NDPO while still on probation for a non-NDPO, is not similarly situated to a parolee who commits a NDPO after completing a prison term for the non-NDPO.id: 18443
Forgery of a prescription is not a nonviolent drug possession for purposes of Prop 36 probation.Defendant argued that he was entitled to Prop 36 probation after he pled guilty to issuing or forging a prescription for a narcotic drug in violation of Health and Safety Code section 11368. However, forgery of a prescription in violation of section 11368 does not meet the statutory definition of a "nonviolent drug possession offense" as required for Prop 36 treatment.id: 18453
Defendant's forgery offense could not have been drug-related for purposes of Prop 36 even if he intended to buy drugs with the proceeds.Defendant was sentenced to prison after his probation was violated following a finding that he committed forgery. He argued the court erred in revoking his Prop 36 probation since the prosecutor failed to prove his reason for cashing the check was not drug-related. However, even if he had planned to buy drugs with the check proceeds, the offense would not have been drug-related as Prop 36 defines that term.id: 18464
Forging prescriptions is not a qualifying offense under Prop 36.The crime of forging or presenting a forged prescription to obtain drugs, in violation of Health and Safety Code section 11368, does not qualify for treatment under Proposition 36.id: 18336
The trial court did not err in finding defendant might abuse drugs in the future, even though he completed a Prop 36 treatment program.Defendant pled guilty to certain drug charges and was given diversion under Penal Code section 1000. After a notice of unsatisfactory diversion from his probation officer, defendant requested and was granted Prop 36 probation. As a condition he was ordered to participate in a drug treatment program. After a threat to the group leader, he was terminated two classes short of completion. He was then allowed to attend two sessions in another program to complete his program. He then moved to dismiss the charges, expunge his conviction and terminate probation. The court denied his request finding no reasonable cause to believe he would not abuse drugs in the future. Contrary to defendant's claim, mere completion of the program was not enough. The court was also required to find the treatment was effective such that reasonable cause existed to believe he would not abuse drugs in the future. The court did not use an improper legal standard and did not abuse its discretion in making its ruling.id: 18307
Trial court may require defendant to waive custody credits for time spent in a residential treatment program as a condition of Prop 36 probation.Defendant pled guilty to a drug offense and was granted Prop 36 probation on condition that he complete a drug treatment program, and that he waive his entitlement to future custody credit for time spent in a residential treatment program. On appeal he argued the court erred by requiring him to waive future custody credits. However, Penal Code section 1210.1, subd.(a) authorizes a court to require a defendant, as a condition of probation to waive entitlement to section 2900.5, subd.(a) custody credits for time defendant spends in a residential treatment facility.id: 18321
Defendant who had violated probation three times was properly denied Prop 36 treatment.Defendant argued the trial court erred in denying him drug treatment and rehabilitation under Prop 36. The court denied defendant Prop 36 treatment after finding he violated probation three times. Contrary to defendant's claim there was no requirement that his probation comply with Penal Code section 1210.1, subd.(a) for the violation of that probation to be counted. Moreover, defendant's failure to enroll in and complete a drug treatment program could be counted towards his three chances at probation.id: 18289
Defendant was ineligible for Prop 36 probation and treatment where his current nonviolent drug offense occurred within 5 years of a misdemeanor drunk driving conviction.A misdemeanor conviction for driving with a blood alcohol level of 0.08 percent or higher constitutes "a misdemeanor conviction involving ... the threat of physical injury to another person "within the meaning of Penal Code section 1210.1, subd.(b)(1). Because defendant's current nonviolent drug possession offense occurred within five years of the misdemeanor drunk driving offense, he was ineligible for Prop 36 probation and treatment.id: 18272
Blakely does not prohibit the trial court from deciding whether defendant's possession or transportation was for personal use under Prop 36.Although the jury refused to find that defendant possesses the cocaine base for sale, the trial court refused to find that it was for personal use. On that basis the court ruled defendant was ineligible for probation under Proposition 36. Defendant argued Blakely/Apprendi error where the personal use finding for purposes of Prop 36 was not made by the jury. However, neither Blakely nor Apprendi prohibited the trial court from deciding, based on a preponderance of the evidence, whether defendant's possession or transportation was for personal use for purposes of Prop 36.id: 18191
Defendant may validly enter a guilty plea that permits sentencing under the DSL even though the offense qualifies for Prop 36 probation.A defendant may validly enter into a plea bargain that permits sentencing under the determinate sentencing law, when the admitted crime is a "nonviolent drug possession offense" for purposes of Prop 36. Defendant's claim that the court was required to place him on Prop 36 probation was an attack on the validity of the plea and required a certificate of probable cause.
id: 18127
Defendant who was convicted of possession of a controlled substance while armed was not eligible for Prop 36 probation.Defendant's conviction under Health and Safety Code section 11370.1, subd.(a) for possession of a controlled substance while armed with a loaded operable firearm did not constitute a "nonviolent drug possession offense" as defined in Penal Code section 11370.1. Therefore, defendant was not eligible for Prop 36 probation.id: 18064
The trial court erred by allowing the Prop 36 defendant to choose his treatment in exchange for an upper term.Defendant pled guilty to a drug related offense and received Prop 36 probation. At the hearing for his second drug related violation of probation, he stipulated to an upper term sentence of three years as a condition of receiving outpatient treatment. The court later revoked probation and imposed the three year upper term following a non-drug related probation violation. On appeal he argued the court violated Penal Code section 1210.1, by requiring him to stipulate to an upper term in return for a particular treatment. The trial court improperly abdicated its authority by allowing defendant to choose his treatment in exchange for a particular sentence. Moreover, defendant was not estopped from challenging his sentence.id: 17965
Prop 36 treatment was properly denied since defendant's conviction of driving under the influence of drugs is a misdemeanor not related to drugs for Prop 36 purposes.Defendant was convicted of transporting methamphetamine, a felony, and driving under the influence of a controlled substance, a misdemeanor. Defendant argued the misdemeanor was drug related withing the meaning of Penal Code sections 1210.1, subd.(b)(2) and 1210, subd.(d). However, driving a vehicle while under the influence of a controlled substance is "a misdemeanor not related to drugs," and the trial court properly denied defendant Prop 36 probation and treatment.id: 17892
Defendant's failure to meet with the mental health "gatekeeper" after the imposition of Prop 36 probation was drug related and the court erred in excluding him from further Prop 36 treatment.Defendant pled no contest to drug possession and was placed on Prop 36 probation. The court later found that defendant's failure to report to the mental health "gatekeeper" for an initial evaluation, was not a violation of a drug related condition of probation, and excluded him from further Prop 36 treatment. However, the court's determination was erroneous and the Prop 36 probation was ordered reinstated.id: 17833
Prop 36 washout period begins when the defendant committed the disqualifying prior felony, as opposed to the time he was convicted of that felony.The washout period, for Proposition 36 purposes, commenced when defendant committed the disqualifying prior felony, as opposed to when he was convicted of that felony. Defendant was therefore eligible for Prop 36 probation despite his December 2000 felony conviction.id: 17808
Juvenile court's failure to apply Prop 36 to minor did not violate equal protection principles.The juvenile court's failure to apply Proposition 36 to a minor did not violate equal protection principles because minors adjudged in violation of nonviolent drug possession offenses are not similarly situated to adult convicted of these offenses with respect to the legitimate purposes of the law.id: 17772
The juvenile court properly stated the maximum term of confinement to be one year and four months for the drug possession and battery even though an adult term might be less due to Prop 36.Under Welfare and Institutions Code section 726, the juvenile court must specify that the maximum term of confinement for the misdemeanor is the longest potential sentence set forth in the statute defining the offense. This may be done without referring to the circumstances that would have to exist before that sentence could be imposed on an adult offender. Therefore, the court did not err in setting one year and four months as the maximum term of confinement for the drug possession and the battery.id: 17773
A conviction of opening or maintaining a place for the purpose of selling or giving away a controlled substance under Health and Safety Code section 11366 does not qualify as a nonviolent possession offense under Prop 36.Because it is more like a commercial offense than a simple possession offense, a defendant convicted of opening or maintaining a place "for the purpose of unlawfully selling, giving away or using any controlled substance" is not eligible for Prop 36 sentencing.id: 17746
Trial court has discretion under section 1385 to dismiss a misdemeanor that disqualifies a defendant from Prop 36 consideration.Defendant's misdemeanor conviction for driving on a suspended license was completely unrelated to the possession or use of drugs, and he was therefore excluded from the Proposition 36 sentencing scheme. However, the trial court has discretion under Penal Code section 1385 to dismiss a disqualifying misdemeanor. That the court had suspended imposition of sentence and ordered defendant to probation on the misdemeanor did not preclude it from exercising its authority to dismiss under section 1385. The matter was remanded to allow the court to exercise its discretion to dismiss the misdemeanor. Assuming Prop 36 does not apply, the court did not err in imposing a jail term in light of defendant's criminal history.id: 17755
Court did not err in denying Prop 36 probation to a defendant who committed and was convicted of grand theft while awaiting trial on the drug charge.While defendant was awaiting trial on drug charges, he committed grand theft. By the time he appeared for sentencing on the drug charges, he had been convicted of grand theft and sentenced to two years in state prison. The trial court did not err in finding defendant ineligible for probation under Proposition 36. It did not matter that the grand theft occurred after the drug offense or that it occurred in a separate proceeding. Defendant's incarceration on the theft offense rendered him ineligible to receive the treatment required under Prop 36. Moreover, the nondrug felony he committed while awaiting trial on the drug charge removed him from the class of nonviolent substance abusers the voters of Prop 36 sought to assist. The court was not required to apply Prop 36 literally where such application would plainly conflict with the intent of the statute.id: 17713
Court properly revoked defendant's Prop 36 probation because of her failure to report to her probation officer for an assessment of her compliance with non-drug-related conditions.The trial court properly revoked defendant's Prop 36 probation because substantial evidence established that she had violated a "non-drug-related" condition of her probation by failing to report to her probation officer for an assessment of whether she was satisfactorily complying with the non-drug-related conditions of her probation.id: 17660
Defendant's refusal to commence drug treatment rendered her ineligible for reinstatement of Prop 36 probation.Defendant was ineligible for reinstatement of her Prop 36 probation under Penal Code section 1210.1, subd.(b)(4) as her repeated failure to commence court-ordered drug treatment evinced an unequivocal refusal to undergo drug treatment. Defense counsel therefore did not render ineffective assistance by failing to seek reinstatement of the Prop 36 probation.id: 17661
The trial court did not err in denying Prop 36 treatment for defendants who were acquitted of possession for sale and convicted of simple possession.The jury's decision to acquit defendants of possession for sale and find them guilty of the lesser included offense of possession did not preclude the court from making a factual determination that drugs found outside the car were possessed for purposes other than personal use. Moreover, the prosecutor's failure to specifically allege the transportation was not for personal use, and the lack of such finding while rendering the verdicts consistent with a conclusion of transportation for personal use, did not require that defendant's receive Prop. 36 treatment.id: 17646
Failure to report by mail to the probation officer is not a drug related condition of probation for purposes of Prop 36.A general condition of probation requiring a defendant to report by mail to his probation officer, is not a drug related condition of probation under Prop. 36. In sentencing defendant who violated such a condition, the trial court properly applied the presumption against granting probation contained in Penal Code section 1203, subd.(e)(4).
id: 17619
The trial court did not err in holding defendant's drunk driving conviction excluded him from Prop 36 treatment.The trial court properly found that defendant's drunk driving conviction under Vehicle Code section 23152, subd.(b), made him ineligible for sentencing under Proposition 36 guidelines. Moreover, treating an alcohol abuser different than a controlled substance abuser did not violate equal protection principles.id: 17586
Trial courts may not use section 1385 to disregard Prop 36 sentencing factors.The Court of Appeal held the trial court had the power under Penal Code section 1385 to disregard a defendant's criminal history, even though his Prop 36 ineligibility was not a charge or allegation in the information that could be dismissed. However, trial courts may not use section 1385 to disregard "sentencing factors" that are not themselves required to be a charge or allegation in an indictment or information.id: 17409
The trial court can terminate the Prop 36 probation of a defendant who refuses to undergo drug treatment.Implied in the trial court's initial grant of Prop 36 probation was a finding that defendant accepted drug treatment as a condition of probation. However, defendant made no effort to comply with his drug treatment probation. Instead, he left the country. Upon his return he did not report to his probation officer, the treatment center or the court. He appeared in court involuntarily only after being arrested. The trial court did not err in revoking defendant's Prop 36 probation in light of his refusal to undergo drug treatment.id: 17368
As an illegal alien subject to deportation, defendant was not entitled to probation under Prop 36.Defendant, an illegal alien subject to deportation, pleaded no contest to drug possession and was sentenced to 16 months in state prison. He argued the trial court erred in denying him probation under the provisions of Proposition 36. However, defendant was excluded from probation under Penal Code section 1210.1 because, as an illegal alien who was subject to deportation from the United States, he could not satisfy the mandatory condition of probation, that he "complete" a drug treatment program.id: 17279
Defendant was not eligible for Prop 36 treatment due to his numerous pre-Prop 36 failures on probation.Proposition 36 applies to a defendant whose probation is revoked after the effective date of the act as a result of an arrest occurring prior to the act's effective date. Moreover, a defendant's pre-act violations must be considered in determining whether the defendant is eligible for further probation. Defendant was ineligible for probation under Prop 36 where he had more than two pre-Prop 36 failures on probation. id: 17219
Prop 36 does not apply when a probationer commits both qualifying and nonqualifying offenses or probation violations.The provisions of Proposition 36 do not apply when a probationer has committed both qualifying and nonqualifying offenses or violations of probation. That the qualifying and nonqualifying conduct occurred prior to the effective date of Prop 36 was not significant. Therefore, the trial court in the present case could properly revoke probation without a finding of dangerousness, and the court's general sentencing discretion authorized it to revoke probation based on a finding of nonamenability. id: 17225
Defendant who was "convicted" before Prop 36 became effective, but sentenced afterward, was not entitled to its benefits.Defendant pled guilty to a nonviolent drug possession offense in 1997, but he failed to appear for his sentencing hearing. Thereafter, the voters passed Proposition 36, which became effective on July 1, 2001. The act provides for probation sentences for certain nonviolent drug offenders and operates prospectively. Defendant was finally arrested in May 2002, and received a sentence that included county jail time. The defendant was not entitled to disposition under Prop 36, because he was "convicted" as that term is used in the act, before its effective date.id: 17228
Under Prop 36, a first time drug related violation of probation should not result in revocation absent evidence the defendant poses a danger to society.Defendant was a probationer covered by the drug treatment provisions of Proposition 36. The trial court erred by revoking probation for the first time probationer absent evidence that he posed a danger to society. Even if the court had authority to summarily revoke defendant's probation for a first time drug-related violation, the court abused its discretion by not releasing defendant on his own recognizance pending the formal revocation hearing.id: 17181
Defendant was not eligible for Prop 36 drug treatment after violating probation for drug use since his initial conviction included an offense unrelated to drug use - driving under the influence.In 1995 defendant pled no contest to transporting methamphetamine as well as driving under the influence of a controlled substance. He was placed on probation. He later violated the terms of his probation by testing positive for drug use. He sought reinstatement of probation under Penal Code section 1210.1. However, defendant was not eligible for treatment under Prop 36 because he suffered a conviction for a misdemeanor unrelated to the use of drugs (driving under the influence) in the same proceeding as his conviction for the nonviolent drug possession offense.id: 17189
For Prop 36 purposes, the failure to report to the probation officer for a drug test, violated a drug-related condition of probation.Under Proposition 36, only upon a third violation of a drug related condition of probation does an offender lose the benefit of the initiative's directive for treatment instead of incarceration. Prop 36 does not, however, extend the same grace to probationers who violate non-drug related conditions of probation. The trial court erred in finding defendant's failure to report to his probation officer for a drug test did not involve a drug related condition of probation. The court's order imposing jail time was vacated.id: 17195
Defendant was not eligible for Prop 36 probation where she committed a felony within the five years immediately preceding the nonviolent drug possession.Defendant was not free of felony convictions for the five years immediately before her commission in 2001 of nonviolent drug possession offenses. Specifically, she was convicted on June 15, 2000, of committing felony possession of a dangerous weapon. Consequently, under Penal Code section 1210.1, subd. (b)(1), defendant was not eligible for Prop 36 probation. The trial court erred in reaching a contrary conclusion.id: 17123
Trial court erred in lifting stay on prison sentence after a Prop 36 eligible defendant violated probation since there was no finding that he posed a danger to others.Defendant's probationary term fell within the provisions of Proposition 36. After a probation violation hearing, the trial court lifted a stay of the two-year prison sentence. However, the order improperly deprived him of the benefits of Proposition 36, because there was no finding that he posed a threat to others. Absent this finding, the trial court's only option was to require defendant to participate in a drug treatment program as an additional condition of probation.id: 17143
Under Prop 36, the trial court had no discretion to revoke probation of a drug offender absent a finding that she was a danger to others.The trial court erred when it determined defendant was ineligible for probation under Proposition 36, and sentenced her to prison. Both parties agreed that none of the exclusions in Penal Code section 1210.1, subd.(b), applied to defendant. Section 1210.1 applies to the initial sentencing as well as a decision to revoke probation. There was no finding that defendant was a danger to others. Therefore, the trial court had no discretion to revoke probation.id: 17041
Prop 36 involves a sentencing reduction rather than an enhancement and therefore, Apprendi has no application.Citing Apprendi v. New Jersey (2002) 530 U.S. 466, defendant argued the issue of whether, under Penal Code section 1210 (enacted as part of Proposition 36), a defendant transports drugs for personal use is a factual question for the trier of fact to determine under a reasonable doubt standard. However, Apprendi has no application since Prop 36 effects a sentencing reduction rather than an enhancement.id: 17046
For purposes of Prop 36, the defendant has the burden of proving the drugs he transported were for personal use.Under Proposition 36, probation must be granted in personal use amount cases. A prosecutor may not avoid the application of Prop 36 simply by charging the offense as a transportation rather than a possession. However, contrary to defendant's claim, the prosecutor does not have the burden of proving the drugs were transported for commercial rather than personal usage.id: 17047
Prior juvenile adjudication for robbery did not bar defendant from participating in a Prop 36 drug treatment program.Defendant pled guilty to drug possession and argued the court erred in finding him ineligible for a drug treatment program under Penal Code section 1210. Contrary to the trial court's ruling, defendant was not ineligible for a treatment program under section 1210.1, subd.(b)(1). Because the robbery finding occurred within the context of a juvenile delinquency proceeding, defendant was not "convicted" of a serious or violent felony within the meaning of section 1210.1, subd.(b).id: 16891
Prop 36 five-year "washout" period must occur in the five years immediately prior to the current possession offense.Penal Code section 1210.1, subd.(b)(1) enacted as part of Proposition 36 provides that the initiative only applies to defendants who have not been imprisoned or committed a felony offense for a period of five years. Contrary to the defendant's claim, and the trial court's ruling, the five-year "washout" period must occur in the five years immediately prior to the current possession offense.id: 16777
Five year washout period of Prop 36 must immediately precede the current drug possession conviction.Defendant was not eligible for drug treatment probation pursuant to Proposition 36. Contrary to defendant's claim, the five-year washout period of Penal Code section 1210.1, subd.(b)(1), must immediately precede the current drug conviction order for the defendant to be eligible for drug treatment.id: 16750
Prop 36 applies to defendants who have been free from prison custody for the five year period immediately preceding the commission of the current offense.The probation and drug treatment program under Proposition 36 is inapplicable to individuals who have suffered prior serious or violent felony convictions, "unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of ... prison custody." The five year period referred to in the statute is the five-year period immediately preceding the current nonviolent drug possession offense, not any five-year period following the prior serious or violent felony conviction.id: 16767
Defendant who was convicted and sentenced before the effective date of Prop 36 was not entitled to retroactive effect of the initiative.Defendant was arrested for cocaine possession. He pled no contest in exchange for a probation term, with a Cruz waiver that would permit a maximum sentence if he committed a new offense. He was then arrested for possessing drug paraphernalia. He admitted the violation and received a three year prison term. He argued that the passage of Proposition 36, 20 days before he was sentenced, required that he be granted probation and ordered into a treatment program. However, the initiative provided for prospective application of its sentencing provisions. To invoke the statute to grant defendant probation, notwithstanding the Cruz violation, would be tantamount to giving the statute retroactive effect since defendant committed the offense, pled guilty, and was sentenced before the July 21, 2001 effective date.id: 16622
Defendant was entitled to sentencing under Prop 36 where he committed the offense prior to the effective date, the court deferred entry of judgment and he was sentenced after the effective date.Defendant argued that because his conviction occurred after the effective date of Penal Code section 1210.1 (Prop 36), he was entitled to probation under its provisions. Where a defendant committed a nonviolent drug offense prior to the effective date of Prop 36, the court deferred entry of judgment under Penal Code section 1000 et seq. and the court sentenced the defendant after the effective date of the Act, the defendant was entitled to be sentenced under its provisions.id: 16602
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245