People v. Superior Court (Martinez)

• Decision Date: 19 December 2002
• Docket Number: No. H023966.,H023966.
• Citation: 128 Cal.Rptr.2d 372,104 Cal.App.4th 692
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Angelica Natasha MARTINEZ, Real Party in Interest.

128 Cal.Rptr.2d 372

104 Cal.App.4th 692

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent Angelica Natasha MARTINEZ, Real Party in Interest.

No. H023966.

Court of Appeal, Sixth District.

December 19, 2002.

George W. Kennedy, District Attorney, Joseph V. Thibodeaux, Supervising Deputy District Attorney, Judith Sklar, Deputy District Attorney, for Petitioner.

No appearance for Respondent.

Jose R. Villarreal, Public Defender, Barbara B. Fargo, Sarita Shah, Deputy Public Defenders, for Real Party In Interest.

RUSHING, J.

Introduction

In this petition for a writ of mandate, the People seek to vacate the trial court's order granting real party in interest, defendant Angelica Natasha Martinez, probation and drug treatment under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000. Defendant was granted drug treatment and probation after she pleaded guilty to nonviolent drug possession offenses and admitted having a 1987 prior strike conviction. According to the People, defendant was not eligible for drug treatment and probation because she has a 1987 prior strike conviction and committed a felony weapons offense within five years immediately preceding her commission of the 2001 nonviolent drug possession offenses. (Pen.Code, § 1210.1, subd. (b)(1).)¹ We agree that the trial court erred and will therefore issue a peremptory writ of mandate.

Factual And Procedural Background

A. Defendant's Current Offenses and Conviction Record

Defendant was charged with one felony count of possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), one misdemeanor count of being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)), and one misdemeanor count of possessing controlled substance paraphernalia. (Health & Saf.Code, § 11364.) All offenses allegedly took place on April 5, 2001. The information also alleged a prior 1987 strike conviction for robbery (§§ 211/212.5, subd. (b)). Defendant pleaded guilty to all charges and admitted the truth of the prior conviction.

According to the probation report prepared for the sentencing hearing, defendant's criminal history includes five prior felony convictions in 1987 for robbery and attempted robbery, and one prior felony conviction in 2000 for possessing a dangerous weapon. (§ 12020, subd. (a).) Additionally, defendant has 17 prior misdemeanor convictions for a variety of offenses, including prostitution, drug possession and loitering. Due to defendant's lengthy criminal history and commission of the present drug offenses while on probation for the felony weapons offense, the probation officer recommended that defendant's request for probation and drug treatment under Proposition 36 be denied. The probation officer also advised the trial court that defendant was ineligible for probation under section 667, subdivision (c)(2), and recommended that she be sentenced to four years in state prison, the midterm for count one.

B. Defendant's Motion for Proposition 36 Probation and Drug Treatment

After pleading guilty, defendant filed a motion requesting the trial court to determine that she was eligible for probation and drug treatment pursuant to Proposition 36. Defendant argued that she was eligible because her current offenses are for nonviolent drug possession and she was not barred by the section 1210.1, subdivision (b)(1) exception for persons with a prior strike conviction, because she had achieved a five-year washout period after her release from prison in 1992, in which she was free of both prison custody and any disqualifying convictions. Specifically, defendant asserted that she was paroled in January 1992 after serving her sentence for the 1987 robbery convictions, and that she had not been in prison custody since that time. Defendant also stated that she was not convicted of any felony offense from January 1992 until June 14, 2000, the date she was convicted of the felony weapons offense.

Defendant argued that she was eligible for drug treatment and probation based on her interpretation of section 1210.1, subdivision (b)(1). Section 1210.1, subdivision (b)(1), together with subdivision (a), provides that a person convicted of nonviolent drug possession is not eligible for drug treatment probation if the person has been convicted of one or more specified serious or violent felonies, "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." (§ 1210.1, subd. (b)(1).)

Defendant argued that the phrase "after a period of five years" in section 1210.1, subdivision (b)(1) must be construed to provide a washout period of five years after the date of release from prison on a prior conviction for a serious or violent felony, not before the commission of the current nonviolent drug possession offense. Defendant explained that "[u]nder the terms of the statute, the conviction `washes out' if the defendant remains both prison custody free and free from commission of any offense, other than [a nonviolent drug possession offense], which results in a felony conviction or a misdemeanor conviction relating to physical injury for a period of five years. Thus, from the date defendant is released from prison on his conviction for a serious felony, if he remains out of prison and is not convicted of a new felony offense or misdemeanor involving physical injury or threat thereof for a period of five years, his prior serious felony conviction `washes out' and it may not be used to deny him drug treatment under [section] 1210.1 at any time in the future."

Defendant also maintained that the washout provision of section 1210.1, subdivision (b)(1), is analogous to the washout provision of section 667.5, which provides enhanced punishment for habitual criminals, and likewise begins to run immediately after defendant is released from prison. To conclude otherwise would in defendant's view be contrary to the legislative history of Proposition 36. If the electorate had intended the qualifying five-year period to be the five years immediately preceding the current drug offense, defendant argued, the text of Proposition 36 would have expressly indicated that intent.

C. The People's Opposition to Defendant's Motion

The People opposed defendant's motion and argued that defendant was not eligible for Proposition 36 probation and drug treatment. According to the People, defendant's interpretation of the language of section 1210.1, subdivision (b)(1) pertaining to the five-year period, was incorrect for several reasons. First, the People contended that a plain language reading of section 1210.1, subdivision (b)(1), shows that the five-year period must obviously immediately precede the current offense. Therefore, the People argued, defendant's June 2000 felony weapons conviction, which occurred during the five-year period immediately preceding her current nonviolent drug possession offenses in 2001, rendered her ineligible for Proposition 36 probation and drug treatment.

Second, the People challenged defendant's contention that Proposition 36 provides a washout provision analogous to the washout provision in section 667.5. The People distinguished section 667.5 because that section is used to increase punishment, while section 1210.1 is used to decrease punishment and to help defendants who have remained crime-free. Finally, the People argued that the principle of statutory interpretation requiring an ambiguous penal statute to be interpreted in favor of the defendant is inapplicable, because, in the People's view, section 1210.1, subdivision (b)(1) is not ambiguous.

D. The Trial Court's Order Granting Probation

The trial court granted defendant's motion. The trial court reasoned that the language of section 1210.1, subdivision (b)(1), pertaining to the five-year period, is ambiguous. The trial court found that the language was reasonably susceptible of two interpretations, as argued by the parties, and therefore under principles of statutory interpretation, the court decided that the statute should be construed in defendant's favor to provide a five-year washout period. Accordingly, the court ruled that "because the defendant's [section] 12020 conviction or offense committed in the year 2000 was not a serious or violent offense, and the defendant following her strike prior had been released from prison for a period of over eight years she is eligible for drug treatment under this Court's findings pursuant to Proposition 36."

The People petitioned for writ relief from the probation order. We issued an order to show cause why the relief requested should not be granted. We also granted the People's request for judicial notice of the California Official Voter Information Guide for the November 7, 2000, general election.

Discussion

A. Writ Review is Available

The People have a statutory right to seek writ review of an order granting probation pursuant to section 1238, subdivision (d). (.People v. Douglas (1999) 20 Cal.4th 85, 92, 82 Cal.Rptr.2d 816, 972 P.2d 151.) Section 1238, subdivision (d), provides that "Nothing contained in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation." Therefore, "[m]andate, not appeal, is the proper means for the People to secure review of an order granting probation. [Citations.]" (People v. Superior...