People v. Orabuena

• Decision Date: 25 February 2004
• Docket Number: No. H025987.,H025987.
• Citation: 10 Cal.Rptr.3d 99,116 Cal.App.4th 84
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Timothy Robert ORABUENA, Defendant and Appellant.

10 Cal.Rptr.3d 99

116 Cal.App.4th 84

The PEOPLE, Plaintiff and Respondent, v. Timothy Robert ORABUENA, Defendant and Appellant.

No. H025987.

Court of Appeal, Sixth District.

February 25, 2004.

As Modified March 24, 2004.

Kathleen Woods Novoa, Big Sur, for Appellant (under appointment by the Court of Appeal).

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Jill M. Thayer, Deputy Attorney General, for Respondent.

McADAMS, J.

The Substance Abuse and Crime Prevention Act of 2000 (hereafter Proposition 36 or the Act) provides that persons convicted of certain nonviolent drug offenses shall be ordered to probation and receive drug treatment in lieu of incarceration. The Act excludes certain defendants from its purview, including someone like defendant Timothy Orabuena who has been convicted in the same proceeding of a misdemeanor that is not related to the use of drugs. (Pen.Code § 1210.1, subd (b)(2).)

In this case, we consider whether the trial court has the discretion under Penal Code¹ section 1385 to dismiss such a misdemeanor that would otherwise render a defendant ineligible for the special sentencing provisions of Proposition 36. We conclude that a trial court has the power to dismiss such a disqualifying misdemeanor and that the court failed to determine whether dismissal is appropriate in this case. We shall therefore reverse and remand so that the court may consider whether it should dismiss defendant's conviction in the same proceeding of a misdemeanor that is not related to the use of drugs so that he may become eligible for the special sentencing provisions of Proposition 36.

FACTS

On November 15, 2002, defendant helped Johnny Espinoza clean up his yard. Defendant left Espinoza's house and drove a car to the store to buy cigarettes. When he returned, he found several agents of the Unified Narcotics Enforcement Team executing a search warrant on Espinoza's property, looking for evidence of drug activity. The officers searched defendant and found a plastic baggie containing .55 grams of methamphetamine in defendant's right front pants pocket. One of the agents determined that defendant was under the influence of drugs. Defendant told the officer that he had used methamphetamine the day before. The officers checked defendant's driver's license status through county communications and learned that his license had been suspended.

PROCEDURAL HISTORY

Defendant was charged with possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a), a felony), being under the influence of methamphetamine (Health & Saf.Code, § 11550. subd. (a), a misdemeanor), and driving on a suspended or revoked license (Veh.Code, § 14601, subd. (a), a misdemeanor). The complaint² also alleged that defendant suffered four prior convictions for driving on a suspended license (Veh.Code, § 14601.2).

On November 26, 2002, defendant pleaded no contest to the Vehicle Code section 14601 violation and admitted the allegations regarding the prior convictions. The court suspended imposition of sentence on the Vehicle Code violation and placed defendant on probation with terms and conditions, including a condition that he serve 30 days in the county jail.

On February 13, 2003, defendant pleaded guilty to the drug possession and being under the influence of drugs counts. He was referred to the probation department for the preparation of a limited report. The probation officer concluded that defendant was ineligible for treatment under Proposition 36 because he had been convicted in the same proceeding of driving on a suspended license, which is a misdemeanor that is not related to the use of drugs. The probation officer noted that defendant's prior criminal history included six misdemeanor convictions for driving on a suspended license, two misdemeanor convictions for use of a controlled substance, one misdemeanor conviction for passing forged items, and one felony conviction for transportation or sale of a controlled substance. The probation officer recommended probation, with a "lengthy jail sentence."

At the sentencing hearing on the drug counts, defense counsel objected to the imposition of any jail time. He argued that the remaining counts involved simple drug charges and that the state has said that it is opposed to jail time for drug offenses. The court suspended imposition of sentence for three years and admitted defendant to formal probation with terms and conditions, including the requirement that he serve 180 days in county jail.

DISCUSSION

I. The Vehicle Code Violation is a Misdemeanor Not Related to the Use of Drugs That Excludes Defendant From Proposition 36

Defendant contends that his conviction under Vehicle Code section 14601 should not have made him ineligible for sentencing under Proposition 36.

Proposition 36, an initiative measure, was approved by the voters in November 2000 and became effective on July 1, 2001. (§ 1210.1.) "Proposition 36 outlines an alternative sentencing scheme for those convicted of certain narcotics offenses." (In re Varnell (2003) 30 Cal.4th 1132, 1136, 135 Cal.Rptr.2d 619, 70 P.3d 1037 (Varnell).) It generally requires probation and drug treatment in lieu of incarceration for certain nonviolent drug possession offenders, but excludes other offenders from the program. (Id. at p. 1135, 135 Cal.Rptr.2d 619, 70 P.3d 1037.)

The statutes enacted as a result of the passage of Proposition 36 provide that "any person convicted of a nonviolent 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.... A court may not impose incarceration as an additional condition of probation." (§ 1210.1, subd. (a).) "The term `nonviolent drug possession offense' means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code." (§ 1210, subd. (a).) Methamphetamine is one of the controlled substances identified in Health and Safety Code section 11055. (Health & Saf.Code, § 11055, subd. (d)(2).) Thus, defendant's felony conviction for possession of methamphetamine and his misdemeanor conviction for being under the influence of methamphetamine qualify as nonviolent drug possession offenses to which the Proposition 36 sentencing scheme generally applies.

Defendant's misdemeanor conviction for driving on a suspended or revoked license is not subject to Proposition 36 treatment because it does not meet the statutory definition of a nonviolent drug possession offense. The question then becomes whether the Vehicle Code section 14601 conviction precludes Proposition 36 sentencing for the nonviolent drug offenses. The Attorney General argues that defendant is excluded from the alternative sentencing scheme prescribed by Proposition 36 because of the Vehicle Code violation. Defendant argues that his Vehicle Code conviction should not preclude Proposition 36 sentencing for his drug offenses.

The alternate sentencing scheme prescribed by Proposition 36 excludes five classes of defendants. (§ 1210.1, subd. (b).) The only exclusion that applies in this case is the exclusion set forth in subdivision (b)(2) of section 1210.1, which provides that 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." (Italics added.) The term "`misdemeanor not related to the use of drugs'" is defined as "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)." (§ 1210, subd. (d).)³

We interpret a voter initiative according to the same principles that govern statutory construction. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276, 87 Cal.Rptr.2d 222, 980 P.2d 927.) "Thus, `we turn first to the language of the statute, giving the words their ordinary meaning.' [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme. [Citation.] When the language is ambiguous, `we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' [Citation.]" (People v. Rizo (2000) 22 Cal.4th 681, 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.)

The plain language of section 1210.1 excludes from its purview a defendant who, in addition to being convicted of a nonviolent drug possession offense, is also convicted in the same proceeding of a misdemeanor that does not involve the simple possession or use of drugs. As noted previously, defendant's Health and Safety Code violations qualify as nonviolent drug possession offenses under Proposition 36. However, defendant's conviction for driving on a suspended license is completely unrelated to the possession or use of drugs. Thus, pursuant to the plain meaning of the statute, defendant is excluded from the alternative sentencing scheme prescribed by Proposition 36.

II. The Trial Court's Discretion to Dismiss the Vehicle Code Violation Pursuant to Section 1385

Defendant contends the trial court erred because it had the discretion under section 1385⁴ to dismiss the misdemeanor Vehicle Code conviction that rendered him ineligible for sentencing under Proposition 36 and failed to exercise that discretion. Defendant contends that a court may use section 1385 to dismiss a "misdemeanor not related to the use of drugs" or a felony...