In re Delong

• Decision Date: 31 October 2001
• Docket Number: No. B151613. (Super.Ct.No. SA040077).,B151613. (Super.Ct.No. SA040077).
• Citation: 93 Cal.App.4th 562,113 Cal.Rptr.2d 385
• Court: California Court of Appeals Court of Appeals
• Parties: In re Janet DELONG, on Habeas Corpus.

113 Cal.Rptr.2d 385

93 Cal.App.4th 562

In re Janet DELONG, on Habeas Corpus.

No. B151613. (Super.Ct.No. SA040077).

Court of Appeal, Second District, Division 3.

October 31, 2001.

Michael P. Judge, Public Defender, Albert J. Menaster, Michael J. Schultz and Alex Ricciardulli, Deputy Public Defenders, for Petitioner.

Steve Cooley, District Attorney, George M. Palmer, Head Deputy District Attorney, and Phyllis C. Asayama, Deputy District Attorney, for Respondent.

KLEIN, P.J.

Petitioner Janet DeLong (DeLong) seeks a writ of habeas corpus directing respondent superior court to sentence her to probation with no incarceration pursuant to Proposition 36, the drug probation initiative. (Pen.Code, § 1210 et seq.)¹

The essential issue presented is the applicability of Proposition 36 to a defendant such as DeLong who was adjudged guilty prior to the initiative's effective date of July 1, 2001, but not sentenced until afterwards.

Proposition 36 applies to defendants convicted on or after July 1, 2001. Conviction within the meaning of 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 Proposition 36. Accordingly, we grant the relief requested by DeLong.

FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 2000, an information was filed alleging that on August 10, 2000, DeLong committed the crime of possession of a controlled substance, namely cocaine, in violation of Health and Safety Code section 11350, subdivision (a), a felony. The case was tried to a jury which, on May 18, 2001, returned a verdict of guilty.

Sentencing was continued to June 14, 2001, and DeLong was permitted to remain released on her own recognizance until then, conditioned on her attendance at Narcotics Anonymous meetings. On June 14, 2001, DeLong appeared in court and submitted proof of her attendance at meetings. The trial court granted DeLong's request to continue sentencing to July 12, 2001, and allowed her to travel to Pennsylvania.

On July 1, 2001, Proposition 36 took effect. The following day, DeLong filed a motion to apply the sentencing provisions of Proposition 36 to the instant case.

Section 1210.1, which was added to the Penal Code by Proposition 36, provides in relevant part that "any person convicted of a nonviolent drug possession offense shall receive probation." (§ 1210.1, subd. (a), italics added.) DeLong argued Proposition 36 is applicable in cases in which the conviction, i.e. adjudication of guilt and sentencing thereon, occurs on or after July 1, 2001. According to DeLong, because she had not yet been sentenced, she would not be convicted until after the statute's effective date and therefore she was eligible for probation thereunder.

On July 12, 2001, the matter came on for hearing. The People opposed DeLong's motion, arguing she was ineligible for sentencing under Proposition 36 because the initiative "applies to crimes committed on July 1st and thereafter." Further, even assuming Proposition 36 applies to convictions occurring on or after July 1, 2001, DeLong would be ineligible because she was convicted, i.e., found guilty by a jury, prior to July 1, 2001.

The trial court ruled, "I don't find that she falls within the scheme of Prop. 36 within the time frame allotted for Prop. 36." The trial court found the conviction occurred on May 18, 2001, the date the jury returned its guilty verdict, and because the conviction preceded July 1, 2001, Proposition 36 was unavailing to DeLong. The trial court suspended the imposition of sentence and placed DeLong on formal probation for a period of three years on various terms and conditions, including serving the first 150 days in county jail.

DeLong filed the instant petition. We issued an order to show cause and directed that DeLong's incarceration be stayed pending further order of this court.²

CONTENTIONS

DeLong contends Proposition 36 should apply to a defendant so long as she is sentenced after July 1, 2001, regardless of the date the crime was committed or the date the defendant was found guilty.

DISCUSSION

1. Proposition 36.

Proposition 36, which was approved by the voters at the November 7, 2000 general election, effected a change in the sentencing law so that a defendant convicted of a nonviolent drug possession offense is generally sentenced to probation, instead of state prison or county jail, with the condition of completion of a drug treatment program. The declared purpose of Proposition 36 is to "divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses." (Prop.36, § 3.)

The statutory scheme consists of the following sections: section 1210, which defines various terms; section 1210.1, which provides for probation and drug treatment for persons convicted of a nonviolent drug possession offense; section 3063.1, generally providing for drug treatment rather than parole revocation if a parolee commits a nonviolent drug possession offense or violates a drug-related condition of parole; and Health and Safety Code section 11999.4 through 11999.13, pertaining to funding for substance abuse treatment.

Section 1210.1 states in relevant part: "(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a non violent drug possession offense shall receive probation. [¶] As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation."

With respect to its effective date, Proposition 36 provides: "Except as otherwise provided, the provisions of this act shall become effective July 1, 2001 and its provisions shall be applied prospectively." (Prop.36, § 8.)

2. Section 1210.1 applies prospectively to defendants convicted on or after its effective date.

a. Date of conviction, not date of commission of offense, determines eligibility.

"Proper interpretation starts with the actual language of the statute." (American Nat. Ins. Co. v. Low (2000) 84 Cal.App.4th 914, 923-924, 101 Cal.Rptr.2d 288.) Section 1210.1, subdivision (a), states "any person convicted of a nonviolent drug possession offense shall receive probation." (Italics added.) Thus, by the plain meaning of the statute, it is the date of the conviction, not the date of commission of the offense, which determines eligibility.³

b. Section 1210.1 applies prospectively to convictions occurring on or after July 1, 2001.

In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 "stands for the proposition that, `where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.' (Estrada, supra, 63 Cal.2d at p. 748, 48 Cal.Rptr. 172, 408 P.2d 948.) To ascertain whether a statute should be applied retroactively, legislative intent is the `paramount' consideration: `Ordinarily, when an amendment lessens the punishment for a crime, one may reasonably infer the Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest.' ([In re] Pedro T. [(1994)] 8 Cal.4th [1041,] 1045, 36 Cal.Rptr.2d 74, 884 P.2d 1022.)" (People v. Nasalga (1996) 12 Cal.4th 784, 792, 50 Cal.Rptr.2d 88, 910 P.2d 1380.)

The rule "in Estrada, of course, is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent. [Fn. omitted.]" (People v. Nasalga, supra, 12 Cal.4th at p. 793, 50 Cal.Rptr.2d 88, 910 P.2d 1380.)

Here, we have no occasion to construe whether Proposition 36 was intended to apply prospectively or retroactively because section 8 thereof expressly provides the initiative applies prospectively, effective July 1, 2001.

3. Proposition 36 applies to defendants convicted on or after July 1, 2001; conviction within the meaning of section 1210.1 means adjudication of guilt and judgment thereon; therefore, a defendant who was awaiting sentencing on July 1, 2001 is eligible for sentencing under section 1210.1.

The remaining question is the proper interpretation and application of the term "convicted" as used in section 1210.1. In approaching the issue, we are mindful that when language in a penal statute is reasonably susceptible of two constructions, ordinarily the construction that is more favorable to the defendant will be adopted. (People v. Alday (1973) 10 Cal.3d 392, 394, 110 Cal.Rptr. 617, 515 P.2d 1169; see generally, 1 Witkin & Epstein, Cal.Criminal Law (3d ed.2000) Introduction to Crimes, § 24, pp. 51-53.)

People v. Rhoads (1990) 221 Cal.App.3d 56, 60, 270 Cal.Rptr. 266, "recognize[d] that the `term "conviction" has no fixed definition and has been interpreted by the courts of this state to have various meanings, depending upon the context in which the word is used.'" (Accord, People v. Williams (1996) 49 Cal.App.4th 1632, 1637, 57 Cal.Rptr.2d 448.)

Similarly, People v. Shirley (1993) 18 Cal.App.4th 40, 22 Cal.Rptr.2d 340, observed: "An ambiguous term, `convicted' has been given several meanings. `As appears in the case law, the terms "convicted" or "conviction" do not have a uniform or unambiguous meaning in California. Sometimes they are used in a narrow sense signifying a verdict or guilty plea, some other times they are given a broader scope so as to include both the jury verdict (or guilty plea) and the judgment pronounced thereon.' (Boyll v. State Personnel...