State v. the Super. Ct. of La.

• Decision Date: 24 April 2002
• Docket Number: 2,B156011
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MICHAEL EARL TURNER, Real Party in Interest.Filed

THE PEOPLE, Petitioner v THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

MICHAEL EARL TURNER, Real Party in Interest

No. B156011

Filed 4/24/02

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION FIVE

(Super. Ct. No. NA049637)

ORIGINAL PROCEEDING; petition for writ of mandate. Joan Comparet-Cassani, Judge. Petition granted.

Steve Cooley, District Attorney, Patrick D. Moran and Victor M. Minjares, Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Michael P. Judge, Public Defender, Albert J. Menaster, Mick Bodek and Alex Ricciardulli, Deputy Public Defenders, for Real Party in Interest.

CERTIFIED FOR PUBLICATION

GRIGNON, Acting P.J.

In the November 2000 general election, the voters of California adopted Proposition 36, an initiative measure entitled "Drugs, Probation and Treatment Program." Proposition 36, codified in Penal Code section 1210 et seq.,¹ provides that an individual convicted of a "nonviolent drug possession offense" ( 1210.1, subd. (a)) shall be sentenced to probation and ordered to complete a court-supervised drug treatment program in lieu of incarceration. (Ibid.) The probation and drug treatment program is generally inapplicable to individuals who have suffered prior serious or violent felony convictions, "unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of . . . prison custody . . . ." ( 1210.1, subd. (b)(1).) We conclude the five-year period referred to in the statute is the five-year period immediately preceding the current nonviolent drug possession offense, not any five-year period following the prior serious or violent felony conviction. In this case, defendant had been in prison within the five-year period immediately preceding the current offense. Nevertheless, the trial court found defendant eligible for probation and drug treatment pursuant to section 1210.1. The prosecution petitioned for a writ of mandate. We grant the petition.

FACTS AND PROCEDURAL BACKGROUND

Defendant and real party in interest Michael Earl Turner was charged by information with possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). It was further alleged that defendant had suffered three prior serious or violent felony convictions within the meaning of section 1170.12: a 1977 robbery and two 1982 robberies. It was further alleged defendant had suffered a December 18, 1997 conviction for possession of cocaine, had been sentenced to state prison, and had not been free of prison custody for a period of five years. Defendant had been sentenced to four years in state prison in 1997, had been paroled in 2000, had violated parole and been returned to state prison in 2001, and had been again paroled in May 2001. Defendant committed the current drug offense on July 23, 2001. Defendant had not been in state prison for a five-year period between 1989 and 1994.

In the trial court, defendant sought probation and drug treatment pursuant to section 1210.1. Defendant argued he was eligible for probation and drug treatment in spite of his three prior robbery convictions, because he had remained free of prison custody for five years between 1989 and 1994. Petitioner People of the State of California (the prosecution) opposed probation and drug treatment on the ground defendant had not been free of prison custody for the five-year period immediately preceding the commission of the current drug possession offense. Respondent trial court determined defendant was eligible for probation and drug treatment. Defendant pleaded guilty to possession of cocaine. The trial court sentenced defendant to probation and drug treatment. The prosecution filed a timely petition for writ of mandate.² We issued an order to show cause and set the matter for oral argument.

DISCUSSION

Statutory Scheme

"Proposition 36, which was approved by the voters at the November 7, 2000 General Election, effected a change in the sentencing law so that a defendant convicted of a nonviolent drug possession offense is generally sentenced to probation, instead of state prison or county jail, with the condition of completion of a drug treatment program. The declared purpose of Proposition 36 is 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.'" (In re DeLong (2001) 93 Cal.App.4th 562, 566, citing Prop. 36, 3.) A defendant convicted of a nonviolent drug offense will, in general, be sentenced to probation with a condition of completion of a drug treatment program. ( 1210.1, subd. (a).) Although a court may not impose incarceration as a condition of probation, it may require, as additional conditions of probation, "participation in vocational training, family counseling, literacy training and/or community service." ( 1210.1, subd. (a).) Proposition 36 emphasizes treatment, not punishment. It applies only to those convicted of simple drug possession. It does not apply to 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." ( 1210.1, subd. (b)(2).) Likewise, it does not apply to a defendant who possesses or is under the influence of certain drugs and uses a firearm ( 1210.1, subds. (b)(3)(A), (b)(3)(B)); a defendant who has twice been convicted of simple drug possession and proven himself or herself unamenable to treatment ( 1210.1, subd. (b)(5)); a defendant who refuses drug treatment as a condition of probation ( 1210.1, subd. (b)(4)); or a defendant who previously has been convicted of one or more serious or violent felonies and has not remained free of prison custody for a period of five years ( 1210.1, subd. (b)(1)).

Statutory Language

The statutory language at issue is as follows. "Notwithstanding any other provision of law, and except as provided in subdivision (b), 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. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose. Probation shall be imposed by suspending the imposition of sentence. [] In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program." ( 1210.1, subd. (a).)

"Subdivision (a) does not apply to . . . : [] (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." ( 1210.1, subd. (b)(1).)

Statutory Interpretation

"Words used in a statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the . . . voters . . . . [Citations.] [] But the 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation]." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) An exception to the main premise of a statute is to be strictly construed. (Id. at pp. 735-736.) An exception qualifies the main premise and may not be ascribed an unreasonably expansive meaning. (Id. at p. 736.)

"After a Period of Five Years"

The prosecution contends the language of the statute, "after a period of five years," should be construed to mean the five-year period immediately preceding the commission of the current nonviolent drug possession offense. Defendant contends the language of the statute unambiguously refers to any five-year period between the prior serious or violent felony conviction and the commission of the current nonviolent drug possession offense. We conclude that the word "after," standing alone, is susceptible to the construction offered by both the prosecution and defendant, but, when the statute is read as a whole, it supports the prosecution's view that the period referenced is the period immediately...