State v. the Super. Ct. of Napa County

• Decision Date: 02 May 2002
• Docket Number: A096715,1
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF NAPA COUNTY, Respondent; ROBERT OTTO HENKEL, Real Party in Interest A096715 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO Filed

THE PEOPLE, Petitioner v THE SUPERIOR COURT OF NAPA COUNTY, Respondent;

ROBERT OTTO HENKEL, Real Party in Interest

A096715

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT DIVISION TWO

Filed 5/2/02

(Napa County Super. Ct. No. CR105127)

We concur: Kline, P.J., Rvolo, J.

Trial Court: Superior Court of Napa County

Trial Judge: Hon. Stephen T. Kroyer

People: Bill Lockyer Attorney General, Robert R. Anderson Chief Assistant Attorney General, Ronald A. Bass Senior Assistant Attorney General, Michael E. Banister Deputy Attorney General, William Kuimelis Deputy Attorney General

Attorneys for Real Party in Interest Neil Bowman-Davis Deputy Public Defender, Public Defender's Office A096715, People v. Superior Court (Henkel)

CERTIFIED FOR PUBLICATION

Haerle, J.

I. INTRODUCTION

The People challenge the trial court's order granting probation and imposing a drug treatment requirement on real party in interest Robert Otto Henkel. They argue that Henkel is not eligible for probation under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, 1210, et seq. ¹ because he has a prior strike (1192.7, subd. (c)(18)) and, seven months before committing the drug possession offense in this matter, was convicted of committing another felony. We agree and, accordingly, grant the petition for a writ of mandate.

II. FACTUAL AND PROCEDURAL BACKGROUND

Henkel was arrested on May 18, 2001, for possession of methamphetamine. He pled guilty and also admitted a prior strike. One of the terms of his plea agreement was that he would receive probation with a drug treatment requirement rather than incarceration, as permitted under Proposition 36.

However, Henkel has a history of prior convictions. On May 30, 1989, he was convicted of two counts of first-degree burglary ( 459), a strike ( 667, subds. (b) - (i)) and one count of willful infliction of corporal injury upon a spouse ( 273.5), a non-strike felony. He was released from custody, following several parole violations, on March 24, 1994. On October 11, 2000, seven months before his commission of the offense in this case and more than six years after his release from custody following the strike conviction, Henkel was again convicted of willful infliction of corporal injury upon a spouse, a felony ( 273.5).²

After hearing argument on Henkel's eligibility for sentencing under Proposition 36, the trial court suspended imposition of sentence and placed Henkel on probation. This petition followed. We issued an order to show cause and calendared the matter for argument.

III. DISCUSSION

In November 2000, California voters enacted Proposition 36, which requires that certain classes of offenders receive probation and drug rehabilitation treatment (1210.1) Although a wide variety of offenders are eligible for this treatment, Proposition 36 excludes certain persons with a prior history of violent criminal behavior. The issue before us is a narrow one: whether Henkel's criminal history before the methamphetamine possession conviction in this case makes him ineligible for treatment under Proposition 36. In order to answer this question, we look first to the plain meaning of the statute. If the statute's meaning is ambiguous, we turn to the voters' intent and, finally, if the voters' intent is not clear, construe the statute most favorably to Henkel, the offender. (People v. Rizo (2000) 22 Cal.4th 681, 685-686.)

Section 1210.1, subdivision (b)(1), provides that any person who has suffered a prior strike is ineligible for Proposition 36 treatment "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."

The Attorney General argues that the five-year period of freedom from commission of a felony -- often referred to as a "washout" -- must occur in the five years immediately prior to the current possession offense. Henkel, on the other hand, urges us to find that this five-year washout may occur at any time before the current possession offense. The significance of this distinction to Henkel is obvious: after his release from jail in 1994, he did not commit another non-drug related felony for over five years. However, he then committed a non-drug related felony (willful corporal injury on a spouse) only seven months before the drug possession offense in this case. If we count backward from the current drug offense, Henkel would not be eligible for probation and drug treatment. If we count forward from the time of his release from custody in 1994, he would be eligible for this treatment.

The language of the statute not only fails to answer this dispute, but also is general enough to support either position. In order to be eligible for probation and drug treatment, Henkel's current offense had to have taken place "after a period of five years in which the defendant remained free of both . . . custody and the commission of . . . a felony." The reference to "after a period of five years in which the defendant remained" felony-free is not anchored to any particular starting point. Thus, it reasonably could be construed to mean that the washout period could occur at any time after Henkel was released from prison in 1994 or in the five-year period immediately before the current offense. Both Henkel and the Attorney General seem to agree on this point; Henkel, for example, notes that "this 'exclusion exception' is subject to a variety of interpretations based upon the phrase 'after a period of five years.'"

Therefore, we turn to the voters' intent in passing Proposition 36. As our Supreme Court has long held, "when, as here, the enactment follows voter approval, the ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language."³ (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246; Legislature v. Deukmejian, supra, 34 Cal.3d at p. 673, fn. 14.) Here, both the Legislative Analyst's impartial evaluation of the measure as well as the arguments in favor of the initiative assist us in construing the statute.

The Legislative Analyst had this to say about the five-year washout period: "[O]ffenders with one or more violent or serious felonies on their record, and thus subject to longer prison sentences under the Three Strikes law, would not be sentenced under this measure to probation and drug treatment, unless certain conditions existed. Specifically, during the five years before he or she committed a nonviolent drug possession offense, the offender (1) had not been in prison, (2) had not been convicted of a felony (other than nonviolent drug possession), and (3) had not been convicted of any misdemeanor involving injury or threat of injury to another person." (Ballot Pamp., Gen. Elec. (November 7, 2000) analysis by the Legislative Analyst of Prop. 36, pp. 23-24, italics added.)

The Legislative Analyst's reference to the five years before the commission of the drug possession offense eliminates doubt as to which five-year period the court must look to in determining eligibility for Proposition 36 treatment. The use of the word "the" ("the five years before commission of the offense") specifically locates the required five years in the five-year period immediately preceding the offense.

This reading is also consistent with the general tenor of the argument in favor of Proposition 36. This ballot argument does not directly address the question of when the five-year period must occur. However, it does indicate that the initiative was intended to exclude any defendant who was more than a "simple," "nonviolent" drug offender: "Proposition 36 is strictly limited. It only affects those guilty of simple drug possession. If previously convicted of violent or serious felonies, they will not be eligible for the treatment program unless they've served their time and have committed no felony crimes for five years. If convicted of a non-drug crime along with drug possession, they're not eligible. If they're convicted of selling drugs, they're not eligible." (Ballot Pamp., Gen. Elec. (November 7, 2000) arguments in favor of Prop. 36, p. 26, italics added.) Our reading of the washout provision to exclude a "strike" offender with a felony conviction in the five years leading up to the drug possession offense is consistent with this emphasis on the "strict" limitations on eligibility for Proposition 36 treatment.

Henkel's argument to the contrary is simply unreasonable. His reading of the statute would permit the referral to drug treatment of a former "strike" offender who, after remaining felony-free for five years following the strike conviction, then commits numerous non-strike felonies, such as spousal abuse, in the time immediately preceding the drug offense. The voters did not intend to make drug treatment available to this sort of offender. Proposition 36 offers treatment to non-violent, drug dependent offenders because the voters have concluded that they are most amenable to rehabilitation through drug treatment. To hold otherwise and accord Proposition 36 treatment to a person with a history of violent felonies who had recently committed...