People v. Fryman
| Citation | 119 Cal.Rptr.2d 557,97 Cal.App.4th 1315 |
| Decision Date | 30 April 2002 |
| Docket Number | No. H020743.,H020743. |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Tommy Lee FRYMAN, Defendant and Appellant. |
| Court | California Court of Appeals |
Marylou Hillberg, Santa Rosa under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Morris Lenk, Deputy Attorney General, Attorneys for Plaintiff and Respondent.
At the General Election on November 7, 2000, the electorate passed Proposition 36, an initiative entitled the "Substance Abuse and Crime Prevention Act of 2000" (the Act). The Act dramatically changed the penal consequences for those convicted of nonviolent drug possession offenses. In particular, such offenders are placed on probation for mandatory drug treatment instead of "being sent to prison. An uncodified provision of the Act delayed its effective date until July 1, 2001. This provision also made the Act prospective only.
In this case, defendant Tommy Lee Fryman was convicted of a nonviolent drug possession offense before July 1, 2001. Because he had prior serious felony convictions, he was sentenced under the "Three Strikes" law to life in prison. However, had he been convicted after that date, he would have been released on probation for drug treatment.
We conclude that the distinction drawn by the Act's prospective-only provision between those convicted before July 1, 2001, whose judgments are not yet final, and those convicted after that date affected defendant's fundamental interest in liberty. We further conclude that the distinction is not necessary to further a compelling state interest. Therefore, we hold that the drastic difference in treatment of the two groups of defendants—here the difference between incarceration for life and release on probation—violates the constitutional guarantee of equal protection under the law.
A jury convicted defendant Tommy Lee Fryman of being under the influence of cocaine. He then pleaded guilty to possession of cocaine base and admitted nine prior felony convictions alleged as strikes under the Three Strikes law. (Health & Saf.Code, § 11350; Pen.Code, §§ 667, subds. (b)-(i); 1170.12.)1 The court sentenced him to a term of 25 years to life, and defendant appealed from the judgment.
On appeal, he claims the court abused its discretion in declining to dismiss his strikes in furtherance of justice. He also claims his sentence violates the constitutional proscriptions against cruel and/or unusual punishment. In a supplemental brief, defendant further claims that he is entitled to a remand for resentencing under the Act.
We agree with defendant's supplemental claim, reverse the judgment, and remand the matter for resentencing.
Defendant also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In it he claims he was denied effective assistance of counsel because his attorney failed (1) to investigate the legality of his prior strike convictions for false imprisonment and (2) to file, or join his codefendant's, motion to suppress evidence.
We dispose of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 24(a).)
On October 31, 1998, Officer Eve Woloszcuk of the San Jose Police Department was assisting another officer, who passed on information that two black people would be involved in a drug transaction in the area of Hopkins and Alfred Streets in San Jose. Woloszcuk proceeded to that location and observed defendant and female codefendant Long. When Woloszcuk shined a light on them, Long ran up to the door of a house and started knocking. Defendant did not move. Woloszcuk ordered her to return to the street, and she complied. Woloszcuk requested identification (I.D.) and asked whether they lived in the area. Defendant said he had no I.D. and did not live there. While talking to them, Woloszcuk observed symptoms that led her to suspect both of being under the influence of a drug. She also observed two baggies fall from Long's pocket and land between Long and defendant. Woloszcuk retrieved them and saw what she thought was drug residue inside. She also found crack cocaine on the ground between Long and defendant. At that point, Woloszcuk arrested both of them. Later, during a strip search of defendant, police found 1.2 grams of crack cocaine hidden between his buttocks.
Defendant contends that he is entitled to benefit from the Act and therefore the matter must be remanded for resentencing. He argues that under the common law rule of mitigation, the Act applies retrospectively to him because his judgment is not yet final. Alternatively, he argues that if the Act is inapplicable under the rule of mitigation, then the Act denies him equal protection under the law.
We find that the rule of mitigation is inapplicable. We further find that under its own terms, the Act does not apply to defendant. However, we agree with his equal protection claim that the Act must be applicable to those who would otherwise be eligible under the Act but who were convicted of a nonviolent drug possession offense before July 1, 2001, and whose judgments are not yet final.
We summarize the main provisions of the Act and those specific sections pertinent in this case.
Section 2 of the Act states the reasons for the initiative measure. (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) text of Prop. 36, § 2, p. 66.)
Section 3 of the Act declares its purpose and intent: "(a) 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; [¶] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration—and reincarceration—of nonviolent drug users who would be better served by community-based treatment; and [¶] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (Ballot Pamp., Gen. Elec., supra, text of Prop. 36, § 3, p. 66.)
To achieve its purposes, the Act added various sections to the Penal Code and the Health and Safety Code.2
Section 1210, subdivisions (a) to (d) define the terms used in the Act, including "nonviolent drug possession offense," "drug treatment program" and "drug treatment," "successful completion of treatment," and "misdemeanor not related to the use of drugs." Sections 1210.1 and 3063.1, however, are the main vehicles of change.
Section 1210.1, subdivision (a) provides, in relevant part, (Italics added.)
Section 1210.1, subdivision (b) specifies exceptions to the general requirement of probation. Relevant here is section 1210.1, subdivision (b)(1), which excludes defendants previously convicted of serious or violent offenses, "unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person."3
Section 1210.1, subdivision (c) limits the length of treatment and establishes the procedures to be followed by the probation department and drug treatment providers, including the preparation of ongoing progress reports and notification concerning a probationer's nonamenability to drug treatment.
Section 1210.1, subdivision (d) authorizes the court to dismiss the underlying drug possession charge after the "successful completion of drug treatment" and specifies the effect of such a dismissal on one's right to possess a concealable firearm and on the subsequent use and disclosure of records concerning the arrest. (§ 1210.1, subd. (d).)
...
To continue reading
Request your trial
-
People v. Mendoza
...in People v. Floyd (2002) 95 Cal.App.4th 1092, 116 Cal.Rptr.2d 256, review granted on May 1, 2002, S105225, and People v. Fryman (2002) 97 Cal.App.4th 1315, 119 Cal.Rptr.2d 557, review granted on July 31, 2002, 3. The Attorney General believes the word "convicted" in Proposition 36 includes......