Metropolitan News-Enterprise


Wednesday, April 10, 2002


Page 1


Court of Appeal Limits Trial Judges’ Discretion Under Proposition 36

Justices Disapprove Splitting of ‘Proceeding’ to Bring Defendant Under Initiative


By KENNETH OFGANG, Staff Writer/Appellate Courts


A San Bernardino Superior Court judge erred in placing a drug defendant with prior serious felony convictions on Proposition 36 probation less than five years after he was released from prison, the Fourth District Court of Appeal ruled yesterday.

Div. Two set aside Judge Stephen H. Ashworth’s order placing Charles O’Neal Jefferson on probation and sent the case back to the trial court so that Jefferson—who faces a 26-year-to-life sentence—may withdraw the guilty plea which was predicated on the promise of a Proposition 36 disposition.

The panel held that the order was defective not only because Jefferson failed to complete the “washout” period required of ex-inmates before they become eligible under Proposition 36, but also because his drug arrest arose out of the commission of another offense—soliciting a prostitute.

Ashworth rejected the prosecution’s order that the lack of a “washout” barred him from applying Proposition 36. The judge also allowed Jefferson to enter separate pleas to the solicitation and drug charges, thus avoiding—at least in the eyes of the trial judge—the prohibition against applying the treatment-instead-of-jail initiative to someone prosecuted for a non-drug offense in the same “proceeding.” 

Prior Admitted

In pleading guilty to possession of methamphetamine, and to solicitation of a prostitute—the drug was discovered in a search incident to arrest—Jefferson admitted that he had been convicted of robbery in 1984, of attempted robbery in 1985, and of selling drugs in 1993, and that he had not been free of prison custody for five years immediately preceding his new offense.

Ashworth allowed Jefferson to enter separate pleas to the two charges at a single hearing, placed him on probation with mandated drug treatment, and warned him of the potential three-strikes sentence if he violated probation.

But Justice James Ward, writing for the Court of Appeal, agreed with prosecutors that Jefferson does not qualify under Proposition 36.

The initiative, Ward explained, requires the court to place a defendant in drug treatment as a condition of probation if the offense is a nonviolent possessory drug offense and none of the statutory exceptions apply.

Jefferson, however, falls under two exceptions, the justice concluded.

Five-Year Period

Ward explained that under Penal Code Sec. 1210.1(b)(1), a defendant who has been convicted of a serious or violent felony does not qualify under Proposition 36 “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” a felony other than a possessory drug offense, or a violent misdemeanor.

The jurist also cited Sec. 1210(b)(2), which excepts from Proposition 36 a defendant whose drug conviction was accompanied “in the same proceeding” by a conviction of a felony or any non-drug-related misdemeanor.

Ward acknowledged that Sec. 1210.1(b)(1) was somewhat ambiguous as to whether the five-year period had to occur “immediately” prior to the current offense, lending some credibility to the defense argument that Jefferson qualified because he had been free from custody for five years following his 1985 conviction.

But the prosecution’s view, he said, is more consistent with the voters’ intent to offer drug treatment to “nonviolent, drug-dependent criminal offenders…based on the belief that the primary obstacle to their becoming law abiding citizens is their dependency on drugs.”

The voters did not, he said, expect “that drug treatment can easily rehabilitate hard-core offenders,” and required the washout period in order to obtain “an assurance that the defendant is currently trying to give up a life of crime, even though he or she may still have a drug problem.”

As for Jefferson’s solicitation conviction, Ward said it was incurred in the same proceeding as the drug conviction. “Both charges arose from a single incident, were charged in the same information, share the same case number, and the pleas were entered at the same hearing,” he noted.

The jurist distinguished In re Varnell (2002) 95 Cal.App.4th 205, a recent case from this district holding that a judge may, in the interests of justice, apply Sec. 1385 and dismiss the allegation that the defendant is ineligible for Proposition 36 treatment under the washout rule.

Ashworth did not invoke Sec. 1385, Ward noted. If he had, the justice explained, his decision to do so would be reviewable under an abuse-of-discretion standard—taking into consideration the circumstances of the new offenses, the prior crimes, and his prospects for rehabilitation—and he would have been required to explain his reasons in a minute order.

The case is People v. Superior Court (Jefferson), 02 S.O.S. 1698.


Copyright 2002, Metropolitan News Company