Metropolitan News-Enterprise


Friday, June 20, 2003


Page 3


Recent Violent Felony Conviction Always Bars Proposition 36 Treatment—S.C.


By a MetNews Staff Writer


The California Supreme Court yesterday overturned a Court of Appeal ruling that allowed a judge to place a defendant in a Proposition 36 drug treatment program less than five years after being released from prison pursuant to a serious or violent felony conviction.

The justices unanimously ruled that Penal Code Sec. 1385, which allows a court, “in furtherance of justice, to dismiss an “action,” and in some cases, an “enhancement,” cannot be used to avoid application of a statutory “sentencing factor,” such as Proposition 36’s exclusion of recent violent and serious felons from its benefits.”

Only “a charge or allegation in an indictment or information” may be dismissed under Sec. 1385, Justice Marvin Baxter wrote for the court.

This district’s Div. Seven had overturned Ronald Varnell’s 16-month prison sentence based on a methamphetamine arrest in May 2001.

Under the initiative approved by voters in November 2000, a defendant charged with simple possession of a controlled substance is entitled to be placed on 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 granted the writ.

But Baxter, writing for the high court, said that in the absence of an express, or at least an implied, requirement of pleading and proof, there is nothing that can be dismissed under Sec. 1385.

He distinguished a case allowing Sec. 1385 to be used to grant probation to a defendant convicted of a repeat narcotics offense, even though the statute imposing the mandatory prison term did not explicitly require pleading and proof of the prior conviction.

The Proposition 36 situation is different, Baxter reasoned, because Proposition 36 does not absolutely bar probation; it merely renders a defendant unfit for probation under the initiative.

Baxter went on to say that the Court of Appeal decision was inconsistent with voter intent. He cited the proponents’ statement in the ballot pamphlet assuring the electorate that probation would be “strictly limited” under the measure and that serious and violent felons “will not be eligible” unless they’d “served their time” and not committed a new felony—other than simple drug possession—for at least five years.

“Petitioner has no one but himself to blame for his predicament,” Baxter added.

Deputy Public Defender Alex Ricciardulli argued for the defense, and Deputy Attorney General and Marc J. Nolan presented the case for the state.

The case is In re Varnell, 03 S.O.S. 3204.


Copyright 2003, Metropolitan News Company