State v. the Super. Ct. of San Bernardino County

• Decision Date: 09 April 2002
• Docket Number: 4,E030590
• Parties: THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; CHARLES O'NEAL JEFFERSON, Real Party in Interest. E030590 COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO Filed
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Petitioner v THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent

CHARLES O'NEAL JEFFERSON, Real Party in Interest

E030590

COURT OF APPEAL -- STATE OF CALIFORNIA

FOURTH DISTRICT DIVISION TWO

Filed 4/9/02

(Super.Ct.No. FVI 13402)

ORIGINAL PROCEEDINGS; petition for writ of mandate. Stephen H. Ashworth, Judge. Petition granted.

Dennis L. Stout, District Attorney, Grover D. Merritt, Lead Deputy District Attorney, and Mark A. Vos, Deputy District Attorney, for Petitioner.

No appearance for Respondent.

The Law Offices of Brian E. Skibby and Brian E. Skibby for Real Party in Interest.

CERTIFIED FOR PUBLICATION

O P I N I O N

/s/ Ward J.

The People have filed a petition for writ of mandate seeking to set aside an order placing defendant on probation pursuant to Proposition 36. We hold that the defendant is not eligible for drug treatment probation pursuant to Proposition 36. In so holding, we determine that the five-year washout period of Penal Code section 1210.1, subdivision (b)(1), ¹ must immediately precede the current drug possession conviction in order for the defendant to be eligible for drug treatment. We also find that the defendant was ineligible for drug treatment probation under subdivision (b)(2) of section 1210.1. Accordingly, we will grant the People's petition for writ of mandate and order that the trial court set aside its order granting probation.

FACTS

On May 8, 2001, the People filed a felony complaint charging defendant with possession of methamphetamine and alleging two strikes for robbery convictions in 1984 and 1985. According to the testimony at the preliminary hearing, defendant solicited an act of prostitution, and during the subsequent search methamphetamine was discovered. Following the preliminary hearing, the People filed an information which added a misdemeanor violation of soliciting prostitution as count 2. Defendant pleaded not guilty to both counts. He later rejected a prosecution offer to dismiss one of his strikes in exchange for a guilty plea and a six-year sentence, asking, "Why can't I get [Proposition] 36?"

A first amended information was filed on October 17, 2001, that added an enhancement allegation under count 1 under section 667.5, subdivision (b), based on the fact that defendant had gone to prison in 1993 for sales of controlled substances and had not remained free of prison custody for a period of five years prior to committing the new offense. The amended information also reflected that the 1985 prior strike was for attempted robbery rather than robbery.

On this same day, defendant entered into two separate plea agreements for each count. As to count 1, he pleaded guilty and admitted all allegations. The trial court noted, and defendant admitted, that he went to prison in 1993 for selling controlled substances and had not remained free of prison custody for a period of five years prior to committing the new offense for an additional one year. The court then placed defendant in a drug treatment program pursuant to Proposition 36 stating, "So the way I look at this is the sentence would be 25-years-to-life plus one year. And you are doing this because [you] agreed with the Court [that] if you plead to Count 1, you'd be in the drug program pursuant to Penal Code Section 1210, I think it is, under [Proposition] 36; and you'd be released today for that purpose. If you violate or fail out of this drug program, then you are looking at a sentence of 26-to-life."

Defendant had also executed a separate plea form and pleaded guilty to the solicitation charge. Pronouncement of judgment was withheld and he was placed on probation.

The People objected to the plea, contending that defendant was not eligible for treatment under Proposition 36. "[U]nder Penal Code Section 1210.1 [subdivision] (b) [it] states that [a] person is not eligible for treatment under subdivision (a) if the defendant has been convicted in the same proceeding of a misdemeanor not related to the use of drugs. On [sic] here the defendant is charged with violation of Penal Code Section 647 [subdivision] (b), soliciting prostitution; and, therefore, he is ineligible for the charge.

"The People also object to the splitting of charges from the Count 1, [Health and Safety Code section] 11377; Count 2, [section] 647 plea.

"THE COURT: You can't object to it. You can't legally object to it. The defendant can plead straight up to any charge you file against him.

"[THE PROSECUTOR]: I'm just saying for purposes of [Proposition] 36, making him eligible for [Proposition] 36. I'm just objecting for the record of splitting those so that he can get [Proposition] 36. It raises Kellett² issues.

"And, further, under [section] 1210.1 [subdivision] (b) I would object that the five-year washout period does not apply in that he has picked up a felony case within five years of his last two prior strikes, and that he went to prison in [1993] on [Health and Safety Code section] 11352, which is not a non -- it is a sales and transportation, not just possession charge; and he was sent to prison for that for six years, being discharged from parole in 1999."³

The People now seek writ review of the order placing defendant on drug treatment probation pursuant to Proposition 36.

DISCUSSION

Proposition 36, which was approved by the voters at the November 7, 2000, General Election, requires a trial court to sentence a defendant convicted of nonviolent drug offenses to probation, provided there are no disqualifying conditions. The provisions of the proposition are codified in sections 1210, 1210.1, 3063.1, and division 10.8, commencing with section 11999.4, of the Health and Safety Code. By its terms, section 1210.1, subdivision (a), requires the court to grant probation with a drug treatment condition to any person who is convicted of a nonviolent drug possession unless the person is ineligible under section 1210.1, subdivision (b). Persons ineligible for drug treatment include: "(1) Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7, 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. [] (2) Any 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." ( 1210.1, subd. (b)(1) & (2).)

The People contend that defendant is ineligible for drug treatment probation under section 1210.1, subdivision (b)(1) and (2). We agree with the People's position on both issues and must conclude that defendant is ineligible for drug treatment probation.

1. Defendant Did Not Remain Free of Prison Custody for Five Years Immediately Preceding His Current Nonviolent Drug Possession Offense

To qualify under the five-year washout provision of section 1210.1, subdivision (b)(1), the People contend that defendant would have to have been free from prison custody since October 17, 1996, i.e., five years immediately preceding his current conviction. Defendant concedes that he would not be eligible for drug treatment if the five-year washout period must immediately precede the nonviolent drug possession offense. He contends however that there is no requirement in section 1210.1, subdivision (b)(1), that the washout period occur immediately before the current offense, and that he qualifies because he remained free from custody for five years from 1987 to 1993.

Subdivision (b)(1) of section 1210.1 is not free from ambiguity on this issue. It prohibits granting drug treatment probation to any defendant previously 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 . . . prison custody," but it does not state that the drug possession offense must occur immediately after the five-year washout period.

In interpreting a voter initiative, the same principles that govern statutory construction apply. Thus, the courts first turn to the language of the statute, giving the words their ordinary meaning. "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.] If a penal statute is still reasonably susceptible to multiple constructions, then we ordinarily adopt the '"construction which is more favorable to the offender . . . ."'" (People v. Rizo (2000) 22 Cal.4th 681, 685-686.)

We believe that interpreting the statute to require that the five-year washout period immediately precede the drug offense is in accord with the voters' intent. The Legislative Analyst's description of the measure supports this interpretation. "In addition, offenders 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. (Nov. 7, 2000) analysis of Prop. 36 by Legis. Analyst, pp. 23-24, italics...