Metropolitan News-Enterprise


Tuesday, July 22, 2003


Page 1


Proposition 36 Not Retroactive, State Supreme Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


Proposition 36, which mandates treatment rather than incarceration for most offenders convicted of simple drug possession, does not apply to anyone sentenced before the measure’s July 1, 2001 effective date, the state Supreme Court ruled yesterday.

Resolving an issue that had resulted in conflicting Court of Appeal decisions, the justices voted 6-1 to uphold Andre Rene Floyd’s 25-year-to-life sentence for possession of 0.25 grams of cocaine. Kern Superior Court Judge Stephen Gildner imposed the sentence under the Three-Strikes Law after jurors found that Floyd had been convicted of two attempted robberies, a felonious assault, and two burglaries between 1981 and 1985.

On Nov. 7, 2000, two days before Floyd was sentenced, Proposition 36 was approved by California voters. The measure requires that a sentence of probation, with no jail time, be imposed on any defendant convicted of simple drug possession unless made ineligible by the measure.

Ineligible Defendants

A defendant is ineligible if he or she is simultaneously convicted of another offense not covered by the initiative, or if he or she has previously been convicted of a serious or violent felony and was released from custody in the previous five years. The measure mandates appropriations for the treatment programs to which eligible defendants must be sentenced.

Yesterday’s ruling centers on a section of the initiative declaring: “Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively.”

Floyd was charged after Bakersfield police responded to a report that his girlfriend had died, of natural causes. Floyd was standing near the body and crying, an officer testified, when he began to cough and the officer saw a small plastic baggie fly out of his mount and land on the body.

After observing Floyd try to shove the baggie underneath the body, the officer said, he retrieved it and seized it as evidence. A divided panel of the Fifth District Court of Appeal affirmed the conviction and sentence.

Conrad Petermann, the Beverly Hills attorney appointed to represent Floyd on appeal, argued that he should have been sentenced under Proposition 36 based on In re Estrada (1965) 63 Cal.2d 740 and the state and federal equal protection clauses.

“Under the Estrada rule,” Justice Marvin Baxter explained yesterday, “an amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute’s effective date.”

But Baxter said the rule does not benefit Floyd because the plain language of Proposition 36 rebuts any such presumption, reflecting the voters’ intent that only persons sentenced from July 1, 2001 forward receive the benefit of the measure.        

The initiative, Baxter wrote, “means what it says, i.e. that except as otherwise provided, the act shall be applied prospectively.” Prospective application of laws regarding sentencing, the justice added, has long been interpreted to mean that a law applies only to defendants sentenced after it takes effect, and not to those who—like Floyd—were sentenced earlier but have appeals pending on the effective date.

Effective Date

The justice noted that the under the state Constitution, an initiative measure takes effect the day after it is passed unless the text specifies otherwise. The inclusion of an effective date several months after the election, and related language in the ballot argument, reflect the voters’ intent that there be a run-up period during which officials responsible for implementation could plan their responses to Proposition 36 rather than being forced to put into immediate effect, Baxter said.

In People v. Fryman, decided in April 2002, the Sixth District Court of Appeal disagreed with the Fifth District’s decision in Floyd. The Fryman panel agreed that the Estrada rule did not apply, but held—with one dissent—that defendants whose appeals were pending on the measure’s effective date had to be resentenced under Proposition 36 as a matter of equal protection.

Denial of retroactivity, the majority reasoned, creates different treatment for two classes of similarly situated defendants in the absence of compelling reasons for doing so, while applying the measure to the cases of earlier-sentenced defendants would fulfill the voters’ intent “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,” Justice William Wunderlich wrote for the Sixth District.

But Baxter yesterday rejected the equal protection argument put forth by Petermann and by Marylou Hillberg, who represented Tommy Lee Fryman in the Sixth District case and submitted an amicus brief in support of Floyd.

Many jurisdictions, Baxter explained, have adopted sentence-reduction laws that only apply prospectively. Never, the justice declared, has the denial of like reductions to previously sentenced defendants been held an equal protection violation.

Justice Janice Rogers Brown dissented, saying “the majority takes an unnecessarily narrow assessment of the electorate’s intent and in doing so fails to fully effectuate the express purpose of the initiative.”

The voters’ intent in delaying the effective date, Brown reasoned, was to allow time to enable treatment facilities to be licensed or certified. But since those previously sentenced defendants whose convictions were not final as of July 1, 2001 were “still in the system,” the justice said, granting them the benefit of Proposition 36 does no violence to that purpose.

Since “there are two reasonable interpretations of Proposition 36 with respect to whether defendant comes within its ameliorative provisions,” the justice argued, the rule of lenity—giving the benefit of statutory ambiguity to the defendant—should be applied.

The case is People v. Floyd, 03 S.O.S. 3802.


Copyright 2003, Metropolitan News Company