People v. Harbison, 2d Crim. No. B251492

CourtCalifornia Court of Appeals
Writing for the CourtPERREN
Citation179 Cal.Rptr.3d 187,230 Cal.App.4th 975
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jeffrey HARBISON, Defendant and Appellant.
Decision Date21 October 2014
Docket Number2d Crim. No. B251492

230 Cal.App.4th 975
179 Cal.Rptr.3d 187

The PEOPLE, Plaintiff and Respondent,
Jeffrey HARBISON, Defendant and Appellant.

2d Crim. No. B251492

Court of Appeal,
Second District, Division 6, California.

Filed October 21, 2014

See 2 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 166 et seq.

[179 Cal.Rptr.3d 188]

Bruce Young, Judge, Superior Court County of Ventura (Super. Ct. No. 2013000558)

Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy, William M. Quest, Senior Deputy Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.


Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act), was approved by the voters in the November 7, 2000, General Election. The Act dramatically changed the options for sentencing defendants convicted of nonviolent drug possession offenses,1 “[n]otwithstanding any other provision of law.” ( Pen.Code, § 1210.1, subd. (a).) 2 As with sentencing pursuant to the determinate, indeterminate, and violent sex crime statutes, the Act establishes yet another unique alternative sentencing scheme. (See People v. Neely (2009) 176 Cal.App.4th 787, 798–800 & fn. 7, 97 Cal.Rptr.3d 913.)

The Act's alternative sentencing scheme mandates probation and drug treatment instead of incarceration for qualifying offenders. (§ 1210.1, subd. (a).) 3 It also specifies five categories of such offenders who are ineligible for treatment. This case concerns one discrete category: those who have at least twice participated in two separate courses of drug treatment under section 1210.1, subdivision (a) and are “found by the court ... to be unamenable to any and all forms of available drug

[179 Cal.Rptr.3d 189]

treatment.” ( § 1210.1, subd. (b)(5).) 4 The Act underscores the exclusivity of this section by stating, “[n]otwithstanding any other provision of law, the trial court shall sentence [such] defendant[s] to 30 days in jail.” ( Ibid.) Here we hold that persons who are convicted of simple possession of controlled substances and found to be unamenable to treatment must be sentenced to 30 days in jail. No more, no less, and nothing else, “[n]otwithstanding any other provision of law.” ( Ibid.)

Jeffrey Harbison appeals from the judgment following his conviction by jury of possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)) and being under the influence of methamphetamine. ( Id. § 11550, subd. (a).) The trial court found appellant was not amenable to treatment, pursuant to section 1210.1, subdivision (b)(5); placed him on probation for three years; and imposed multiple conditions including 120 days in county jail. Appellant contends the only sentence that the trial court could impose was the mandated 30 days in jail. (§ 1210.1, subd. (b)(5).) We agree and strike the order granting appellant probation and direct the trial court to impose the mandated 30–day jail sentence. We also modify the judgment to reflect the imposition of a mandatory fee and assessment, but otherwise affirm.

The Current Offenses

Appellant was the passenger in a car stopped by a police officer for having a faulty tail lamp. The officer examined appellant, concluded he was under the influence of a controlled substance and arrested him. In the ensuing search of appellant, the officer found a plastic bottle containing .71 grams of methamphetamine. The jury convicted appellant of possessing and being under the influence of methamphetamine.

Appellant's History

Appellant was 57 years old at the time of sentencing. At age 30 he began abusing controlled substances. A decade later methamphetamine became his drug of preference and he used it daily. In 1997 he was first convicted of personal possession of methamphetamine. (Health & Saf.Code, § 11377.) He was granted diversion but failed in that program. Charges were reinstated. From 1997 through 2003 he was convicted seven times of possessing or being under the influence of methamphetamine and was repeatedly placed on probation which he violated with equal frequency. In 2001 his probation was converted to Proposition 36 probation.

In November 2003 his probation was terminated and he was sentenced to a determinate prison term. (§ 1210.1, subd. (e)(1).) Appellant was released on parole in January 2005. Five months later he reoffended and was again placed on Proposition 36 probation. This grant was terminated in January 2007 for being under the influence of a controlled substance. He was subsequently granted formal probation “without regard to the provisions of [Proposition 36]” including a condition that he serve 90 days in jail. (§§ 1210.1, subd. (e)(1), 1203.) In 2013 he was convicted of the present charges.

The Current Sentence

At the probation and sentencing hearing the court and counsel discussed Proposition

[179 Cal.Rptr.3d 190]

36 treatment as an option. Considerable attention was given to appellant's record and the statements of his sister and his father. Their concern for appellant and their frustration with him were evident. The prosecutor argued that appellant was not amenable to treatment. The trial court agreed and found “by clear and convincing evidence [that appellant was] unamenable to any and all forms of available drug treatment.” (§ 1210.1, subd. (b)(5).)

In discussing the appropriate sentence, the prosecutor argued that notwithstanding its express language, section 1210.1, subdivision (b)(5) set a minimum term of 30 days in custody as a component of the court's sentence. Appellant's counsel disagreed, arguing that the statute mandated a sentence of 30 days in jail. The trial court stated it had “the obligation and right [ ] under the Rules of Court and principles of sentencing to impose what it deem[ed] appropriate.” It continued, stating appellant's case should not “be treated differently than any other individual non-proposition [36] felony drug case similarly situated.” Based upon the amount of methamphetamine appellant possessed (.71 grams), as well as other factors, the trial court suspended imposition of sentence and placed him on probation for three years, including a condition that he serve 120 days in jail.


Appellant contends that the trial court erred by granting him probation because the only sentence authorized by section 1210.1, subdivision (b)(5) is a 30–day jail term. We agree.

“Issues of statutory interpretation are questions of law subject to de novo review.” (People v. Simmons (2012) 210 Cal.App.4th 778, 790, 148 Cal.Rptr.3d 554.) “In interpreting a voter initiative such as Proposition 36, we apply the same principles that govern the construction of a statute. [Citations.] ‘Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.]’ ” (People v. Canty (2004) 32 Cal.4th 1266, 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168 (Canty ).) In the case of a voter initiative, “[o]ur role ... is to ascertain the Legislature's intent.... [¶] Our first task is to examine the language of the statute enacted as an initiative, giving the words their usual, ordinary meaning. If the language is clear and unambiguous, we follow the plain meaning of the measure. [T]he plain meaning rule does not prohibit a court from determining whether the literal meaning of a measure comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.” (Ibid. citations and internal quotation marks omitted.) The language of the initiative, and the analyses and argument in the official ballot pamphlet reflect the voters' intent. (People v. Briceno (2004) 34 Cal.4th 451, 459, 20 Cal.Rptr.3d 418, 99 P.3d 1007.)

Section 1210.1, Subdivision (b)(5) Mandates a 30–Day Jail Sentence

“In enacting Proposition 36, the California electorate declared 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

[179 Cal.Rptr.3d 191]

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.’ (Prop. 36, § 3.)” (People v. Guzman (2003) 109 Cal.App.4th 341, 345–346, 134 Cal.Rptr.2d 727.) 5

“Proposition 36 outlines an alternative sentencing scheme for those convicted of certain narcotics offenses. In effect, it acts as an exception to the punishment specified in an individual narcotics offense. (In re Varnell (2003) 30 Cal.4th 1132, 1136, 135 Cal.Rptr.2d 619, 70 P.3d 1037, italics added.) That scheme mandates probation and treatment in lieu of incarceration for most nonviolent drug offenders, pursuant to section 1210.1, subdivision (a). (Canty, supra, 32 Cal.4th at p. 1275, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) “The mandate of probation and treatment, however, does not apply to five defined classes of defendants” in subdivision (b) of section 1210.1.6 ( Varnell, at p. 1136, 135 Cal.Rptr.2d 619, 70 P.3d 1037.) Those other classes have been “summarized as: 1) conviction of prior strike offenses within five years; 2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; 3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof of unamenability...

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