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Drug Possession: Proposition 36 Application and Eligibility

The probation prescribed by P.C. 1210.1(a) 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 either a misdemeanor not related to the use of drugs or a felony. (P.C. 1210.1(b)(2)

In People v. Orabuena (2004) 116 C.A.4th 84, 10 C.R.3d 99, defendant was charged with possessing and using methamphetamine and with driving on a suspended or revoked license. He pleaded no contest to the license violation and later pleaded guilty to the drug counts.

  • Defendant's conviction for driving on a suspended or revoked license is unrelated to the possession or use of drugs. Thus, under P.C. 1210.1(b)(2), he was excluded from the alternative sentencing scheme of Proposition 36. (116 C.A.4th 91.) The trial court, however, had discretion to dismiss the license violation under P.C. 1385, thereby removing the source of defendant's ineligibility for probation. (116 C.A.4th 92.)

Proposition 36 requirements

  • imposes a sentence of probation and drug treatment instead of incarceration for eligible drug offenses. These sentencing provisions apply only to qualifying nonviolent drug users. [T]he unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in [Schedules I-IV of the Controlled Substances Act], or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. This does not include the possession for sale, production, or manufacturing of any controlled substance .

Accordingly, only defendants who are convicted of personal use offenses are eligible for Proposition 36. There are five requirements to be eligible:

  1. The first requirement is the five-year "washout" provision, which excludes certain defendants who have a violent history. These defendants are disqualified from Proposition 36 diversion if (during the previous five years) they either were incarcerated in prison or committed a serious misdemeanor or felony.
  2. The second requirement disqualifies defendants "convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony."A "misdemeanor not related to the use of drugs" is defined in Penal Code section 1210(d) as "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, or (2) any activity similar to those listed in paragraph
  3. The third classification of ineligible defendants includes those who were "using a firearm" while in possession or under the influence of certain substances.
  4. The fourth restriction disqualifies any defendant who refuses drug treatment as a condition of probation.
  5. The final criterion disqualifies defendants who are "unamenable to any and all forms of available treatment."Defendants must be found unamenable "by clear and convincing evidence" after suffering two separate Proposition 36 drug convictions and participating in two courses of drug treatment.

Written by the Office of David P. Schwarz

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