Metropolitan News-Enterprise


Wednesday, January 16, 2002


Page 3


Violent Felony Conviction Not Absolute Bar to Prop. 36 Sentence—C.A.


By a MetNews Staff Writer


A defendant arrested on a drug charge less than five years after being released from prison pursuant to a serious or violent felony conviction may be placed in a treatment program under Proposition 36, this district’s Court of Appeal ruled yesterday.

Div. Seven yesterday overturned Ronald Varnell’s 16-month prison sentence based on a methamphetamine arrest in May of last year. The case was sent back to the Superior Court for reconsideration of a defense request that the prior-conviction allegation be stricken to enable Varnell to qualify for Proposition 36 disposition.

Under the initiative approved by voters in November, a defendant charged with simple possession of a controlled substance is entitled to be placed and probation and assigned to a treatment program, unless an exception applies.

One exception is that “[n]otwithstanding any other provision of law,” a defendant with a prior serious or violent felony conviction does not qualify unless a “wash-out” provision applies.

That provision makes Proposition 36 applicable if the new offense was committed more than five years after the defendant’s release from custody and there has been no intervening conviction for a felony or a violent misdemeanor.

In Varnell’s case, the district attorney argued that he could not qualify under Proposition 36 because he was previously convicted of assault with a deadly weapon and was not released from prison until 1998. Varnell’s lawyer contended that the trial judge could strike the prior, in furtherance of justice, under Penal Code Sec. 1385.

Los Angeles Superior Court Judge Joan Comparet-Cassani ruled that the prior could be stricken for purposes of the three-strikes law, thus sparing Varnell from a doubled prison term, but not for Proposition 36 purposes. She sentenced the defendant to prison for the low term, denying bail pending appeal but encouraging the defense to take a “hot writ” if it wanted to test her ruling.

Div. Seven yesterday granted the writ.

“For more than a century, section 1385 has empowered trial courts to dismiss an action, sentencing allegation, or enhancement in furtherance of justice,” Justice Dennis Perluss wrote.  “Recognizing the fundamental role section 1385 plays in California criminal jurisprudence, our Supreme Court has instructed repeatedly that penal statutes, whether adopted by legislative act or voter initiative, coexist with section 1385 and will not be interpreted to abrogate that power in the absence of clear legislative or voter direction.”

Nothing in the language or history of Proposition 36, the justice said, indicates any clear intent to render Sec. 1385 inapplicable to the initiative.

Perluss  rejected the suggestion that Proposition 36 renders Sec. 1385 inapplicable o serious and violent felons by reason of the “notwithstanding” language. He cited the state Supreme Court’s Romero decision, which allowed the use of Sec. 1385 in three-strikes cases, despite similar language in that law.

Deputy Public Defenders Albert J. Menaster, Alice McVicker and Alex Ricciardulli represented Varnell in the Court of Appeal. Supervising Deputy Attorneys General Marc E. Turchin and Marc J. Nolan represented the state.

The case is In re Varnell, 02 S.O.S. 195.


Copyright 2002, Metropolitan News Company