Metropolitan News-Enterprise


Wednesday, May 1, 2002


Page 1


Equal Protection Clause Requires Retroactive Application Of Drug Sentencing Measure, Appeals Court Rules


By a MetNews Staff Writer


A defendant who was sentenced prior to the operative date of Proposition 36, but who otherwise meets the requirements of that initiative and whose case was on appeal on that operative date, is entitled to be resentenced under the initiative, the Sixth District Court of Appeal ruled yesterday.

A divided panel overturned Tommy Lee Fryman’s 25-year-to-life “three-strikes” sentence for possession of cocaine base. The case was sent back to Santa Clara Superior Court so that Fryman can be placed on probation and sent to a drug program as required by the initiative approved by voters two years ago.

Fryman was arrested in San Jose by an officer who said she observed him and a woman engaged in an apparent drug transaction. When she questioned the pair, she said, they appeared to be under the influence of drugs, and a baggie of what turned out to be crack cocaine fell to the ground between them.

 The pair were arrested. A strip search of Fryman resulted in the seizure of an additional 1.2 grams of crack.

Fryman was convicted of being under the influence of cocaine. He then entered a plea of guilty to the charge of possession of cocaine base, admitted nine prior serious or violent felony convictions, and was sentenced to 25 years to life.

On appeal, he argued that the sentence constituted cruel and/or unusual punishment, and that the judge’s denial of his request to strike the priors in furtherance of justice was an abuse of discretion.

When Proposition 36 became operative on July 1 of last year, about 20 months after sentencing, court-appointed lawyer Marylou Hillberg filed a supplemental brief arguing that the measure should be applied to Fryman, either as a matter of statutory construction or equal protection.

The three justices who heard the appeal agreed that Proposition 36, by its terms, could not apply to anyone sentenced before last July. But Justice William Wunderlich, joined by Monterey Superior Court Judge Robert O’Farrell, sitting on assignment, said the constitutional right to equal protection requires that the measure be applied to Fryman and others similarly situated.

The limitation of Proposition 36 to those sentenced after a particular date, Wunderlich concluded, is subject to strict scrutiny. The justice said the defense made a persuasive argument that “the disparity in treatment infringes on [Fryman’s] fundamental interest in liberty and triggers review under the strict scrutiny standard.”

Wunderlich cited People v. Olivas (1976) 17 Cal.3d 236, in which the court applied strict scrutiny and declared unconstitutional a feature of the juvenile court law that allowed a judge to incarcerate a youthful offender who committed a misdemeanor for a longer period than an adult convicted of the same offense.

The limitation of Proposition 36 to pre-July 1 cases fails to survive strict scrutiny, the justice declared.

Given the expressed purposes of the initiative—“to save money by ending wasteful spending on incarcerating nonviolent drug offenders and to enhance public safety and health by diverting these offenders to drug treatment,” Wunderlich explained, it should be applied to every qualifying defendant whose conviction is not yet final.

Acting Presiding Justice Patricia Bamattre-Manoukian dissented. She argued that Olivas does not require strict scrutiny, that the majority had overlooked the principle that a defendant’s fundamental interest in liberty is diminished upon conviction, and that limiting the initiative’s operation prospectively has a rational basis.

Some California courts have followed Olivas in applying strict scrutiny to penal code classifications,” she acknowledged. But others, she noted, “have concluded that Olivas was not intended to apply so broadly as to subject every penal code classification to strict scrutiny.”

She cited, as examples, the use of the rational-basis test to uphold legislative decisions to classify cocaine as a narcotic rather than a stimulant, to criminalize the possession of more than $100,000 for the purchase of buying drugs, and to criminalize repeated rent skimming.

Bamattre-Manoukian cited People v. Floyd (2002) 95 Cal.App.4th 1092, which held that the “prospectivity clause” has a rational basis in that it gave authorities time to develop programs, rather than being deluged with defendants whom they were obligated provide treatment for even if they had no programs available.

Bamattre-Manoukian wrote:

“In the case before us, at the time defendant committed his crime, when he pleaded guilty, and when he was sentenced, he had no fundamental or statutory right to probation or to drug treatment programs that were not yet in existence. His liberty interest was ‘substantially diminished’ by his conviction.”

Every statute, she said, requires a start date, which “is necessarily arbitrary.”  The mere setting of such a date, the justice wrote, cannot be viewed as creating an irrational classification.

The case is People v. Fryman, H020743.


Copyright 2002, Metropolitan News Company