Metropolitan News-Enterprise


Thursday, November 1, 2001


Page 3


Proposition 36 Applies to Some Pre-July 1 Cases, Appeals Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


Proposition 36, the initiative requiring that treatment be offered as an alternative to jail for most defendants charged with simple drug possession, applies to all defendants sentenced since July 1, this district’s Court of Appeal ruled.

Div. Three granted Janet DeLong’s petition for writ of habeas corpus, ordering that she be sentenced under the initiative. DeLong was found guilty last May of having possessed cocaine in August of last year.

DeLong’s sentencing was originally scheduled for June 14, but was continued twice. Los Angeles Superior Court Judge Stephanie Sautner denied her motion for sentencing under Proposition 36, instead placing her on three years’ probation conditioned on serving 150 days in county jail, among other things.

Sautner reasoned that Proposition 36 didn’t apply because DeLong had been “convicted” prior to the measure’s passage. The Court of Appeal, however, issued an order to show cause why habeas corpus relief shouldn’t be granted and stayed DeLong’s incarceration pending the decision.

Following that order, on Aug. 2, the District Attorney’s Office adopted an interim  policy of treating cases similar to DeLong’s as Proposition 36 cases.

Writing yesterday for the panel, Presiding Justice Joan Dempsey Klein concluded that a conviction, for Proposition 36 purposes, requires both an adjudication of guilt and a sentencing.

California courts, the jurist noted, have held that the terms “conviction” and “convicted” are abstractly ambiguous and must be interpreted in the context of the specific usage.

In the context of Proposition 36, Klein reasoned, an interpretation that expands the class of defendants benefiting from the measure is more consistent with the overall purpose of the initiative than the trial judge’s understanding that the date of the jury verdict was dispositive.

The presiding justice wrote:

“[W]e conclude…use of the term ‘convicted’ must be given a meaning that comports with the purpose of Proposition 36, which is aimed at diverting nonviolent defendants from incarceration into substance abuse treatment programs….[T]he provisions of Proposition 36 reflect it was intended to have a far-ranging application to nonviolent drug offenders.”

Klein noted that under Proposition 36, a defendant who was on probation or parole for a simple drug offense as of July 1, 2001, and who violates the conditions of that status, is entitled to remain on probation or parole—subject to a possible treatment condition—unless determined to be dangerous.

It would make little sense, Klein reasoned, to grant the benefits of the measure to those who were on probation or parole on July 1 but deny them to someone who had been found guilty but not yet sentenced as of that date.

Klein also concluded that application of Proposition 36 to later-sentenced defendants was consistent with the authors’ intent in establishing the July 1 operative date.

“[T]he voters delayed the effective date to July 1, 2001,” she wrote, “so that treatment facilities could be in place, not out of a desire to preserve the stricter sentencing scheme for nonviolent drug offenders for a few more months.”

The presiding justice did, however, add a caveat. Defendants placed on probation prior to July 1, she said, aren’t eligible for Proposition 36 sentencing even if imposition of sentence was suspended.

Klein explained:

“[A]n order granting probation and suspending imposition of sentence is a form of sentencing….Although this type of probation sentence defers the pronouncement of sentence, the probation order is a final judgment for purposes of appellate review….

“Consequently, if an order granting probation and suspending imposition of sentence was made prior to July 1, 2001, the conviction, as we have construed that term, occurred prior to the effective date of Proposition 36.”

The case is In re DeLong, 01 S.O.S. 5321.


Copyright 2001, Metropolitan News Company