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AWARD WINNING SAN DIEGO CRIMINAL ATTORNEY

San Diego Prop 36 & California Penal Code Section 1000

Proposition 36, also known as Prop 36 or as the “Substance Abuse and Crime Prevention Act”, was passed in California in the year of 2000. The proposition objective is to offer an alternative sentencing method to eligible non-violent drug offenders, which are not going to serve time in jail, but in drug treatment programs.

The Proposition 36 is one type of diversion, and it is defined in the sections 1220-1210.1 of the Penal Code and 3063.1.

Drug diversion allows eligible defendants to have their criminal charges or conviction dismissed in the successful completion of a court-approved drug treatment program, which means, a program that includes at least one or more of the following subjects; 1) drug education, 2) outpatient services or residential treatment, 3) detoxification services or narcotic replacement therapy, 4) aftercare services.

As a type of drug diversion, Proposition 36 requires that first and second time defendants convicted of nonviolent drug possession might receive twelve months of substance abuse treatment, extendable up to two more six month periods, in replacement of jail time. The Proposition 36 also applies to parties that violate their parole by a non-violent drug possession offense.

Nonviolent drug possession offenses

In order to consist in a nonviolent drug possession offense, the offender must be unlawfully 1) using and/or being under the influence of any drugs listed in the United States “Controlled Substances Act”, and/or 2) possessing or transporting any of those narcotics for personal use.

The drugs listed on the United States “Controlled Substances Act” are includes the following but are not limited to: a) cocaine, b) heroin, c) peyote, d) gamma-hydroxybutyric acid, known as “GHB”, e) ecstasy, known as “X”, f) ketamine, known as “Special K”, methamphetamines, marijuana, certain hallucinogic substances, for instance, phencyclidine, known as “PCP”, and some prescription drugs, for instance, codeine and hydrocodone, known as “Vicodin”.

Here are some examples nonviolent drug possession that would trigger the Proposition 36:

A girl smoking marijuana in her apartment and answers the door with a joint in her hand, without knowing that the police was verifying a complain about loud music in the house.

A boy carrying someone’s Vicodin in his car, without knowing that it was there and whose drug is it, when stopped by the police because of a broken light.

Offenses that "don't count" for Proposition 36 purposes

  • Health and Safety Code 11351 HS - California's law against possession of a controlled substance for sale.
  • Health and Safety Code 11352 HS - California's law against selling or transporting controlled substances (unless you are only convicted of transporting the drugs for personal use).
  • Health and Safety Code 11359 HS - California's law against possessing marijuana for sale.
  • Health and Safety Code 11360 HS - California's law against selling or transporting marijuana (unless you are only convicted of transporting the marijuana for personal use).
  • Health and Safety Code sections 11378 and 11379 HS - California's laws regulating the sales of "less serious" controlled substances.

Other crimes that do not trigger the Proposition 36

Because their activities consist of more than possessing, using or for personal transportation, courts decided that they do not trigger the Proposition 36 alternative sentencing method.

  • Health and Safety Code 11358 -HS California's law against cultivating marijuana (even if the cultivation is for one's own use).
  • Health and Safety Code 11370.1(a) - California's law against possessing a controlled substance while armed with a loaded, operable firearm.
  • Health and Safety Code 11368 HS - California's law against forging or presenting a forged prescription to obtain drugs.

Other restriction on the eligibility to the Proposition 36. Not only the offense must qualify, but also the offender.

There are five factors that could disqualify a defendant from the alternative sentencing of the Proposition 36.

1)Prior “strike” convictions.

If the defendant was convicted of one or more violent or serious felonies, unless the qualifying nonviolent drug possession offense occurred at least five years after the defendant a) was released from prison, and b) was convicted of either a felony other than nonviolent drug possession offense or a misdemeanor that involved physical injury or the threat of physical injury to another person.

For example:

The defendant was convicted of robbery and was released from prison in 2008. In 2011, the defendant is arrested for the possession of methamphetamine. Because the drug possession offense happened less than five years after his release from prison on and strike conviction under the California Three Strikes Law, the defendant is ineligible for the means of the Proposition 36.

  • Contemporaneous conviction of a non-drug-related misdemeanors or felony.

At the same time of the nonviolent drug possession offense, the defendant is convicted of an additional non-drug-related misdemeanor or felony.

A good example of a misdemeanor not related to drugs is offense of driving under the influence of drugs, known as “DUI”, defined on the Vehicle Code 23152(a) of California. It might seem strange at the first glance, but courts have decided that a DUI offense is more than simply a personal use of drugs, since it puts in danger the physical safety of others.

  • The defendant is armed with a firearm or any other deadly weapon at the time of the nonviolent drug possession offense.
  • The defendant refuses drug treatment as a condition of the probation.
  • The defendant already made use of two previous Proposition 36 programs.

Also, it is important to mention that defendants can fight for their cases and still trigger the Proposition 36 if they lose.

Probation in a California Prop 36 Case. Receiving a Proposition 36 Sentence

  • Plead guilty or “no contest" to a nonviolent drug possession charge.
  • Be convicted of such an offense following a judge ("bench") or California jury trial.
  • Be a parolee (that is, a person who has been released from the California state prison on parole) and, while on parole, either commit a nonviolent drug possession offense or violate a drug-related term of your parole.

With the sentence of a probation under the Proposition 36, the court may, but is not required to, impose some additional terms, such as 1) vocational training, 2) family counseling, and 3) community service.

Violations of the probation or parole under the Proposition 36

If the defendant violates the terms of the probation or parole, the court may impose different consequences. It will vary depending on the degree of the violation.

  • Unamenable to treatment.

When the treatment provider believes that the offender will not benefit from the program, the department or the parole board may revoke your probation or parole, and the judge, agreeing with the outcome, may also revoke the probation or parole and sentence to a period of incarceration.

  • Violation of the terms of the probation or parole.

The court may still allow the offender to continue on Proposition 36 if, with respect to offenses other than nonviolent drug possession offenses, the offender on probation or parole either:

  • Commits an offense that is not a nonviolent drug possession offense.
  • Violates a non-drug-related condition of your probation/parole.

Here is an example of an offense other than nonviolent drug possession while in parole.

  • The parolee while under the Proposition 36 drug treatment program, after a conviction of possessing unlawfully marijuana in the streets of San Diego, hits a parked car and run away of the scene, consisting on a hit and run misdemeanor under California Law.

The court may incarcerate the offender for a limited period of 30 days while it determines to maintain the probation or parole. Even reinstating the probation or parole, the court may also modify the terms of the probation or parole as well as modify the treatment provided.

With respect to nonviolent drug related possession offenses, if the offender violates probation or parole by:

  • Committing a nonviolent drug possession offense
  • Committing a misdemeanor related either to using drugs or to possessing drugs or drug paraphernalia
  • Being in an area where drugs are used
  • Failing to register as a drug offender
  • Violating a drug-related condition of probation (which includes conditions regarding drug treatment, employment, vocational training, and counseling).

A hearing will be conducted, but the court must revoke the probation or parole if there is enough evidence to prove that the offender is a danger to the society.

If the court decides to reinstate the probation or parole, the decision may modify the terms of the program and add up a forty-eight hours of continuous jail time to encourage the offender compliance to the program.

The completion of the Drug Treatment

After the successful completion of the drug treatment offered by the Proposition 36, the defendant may petition to the court in order to dismiss the conviction. If the court agrees with the successful completion of the probation or parole, it will dismiss the case.

Successful completion of drug treatment means that the offender have completed the course of drug treatment that was recommended by the treatment provider and ordered by the court.  It additionally means that there is reasonable cause to believe that he will no longer abuse controlled substances.

Legal Defenses

If you have been charged with this offense, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems. 

CALIFORNIA PENAL CODE SECTION 1000

California Penal Code section 1000 (PC 1000) allows for certain first time drug offenders to avoid suffering a conviction by putting the individuals through a series of drug related education and treatment programs. Defendants who successfully complete the program will earn an automatic dismissal of their case.

ELIGIBILITY

In order for a defendant to be eligible for PC1000, the defendant must meet several requirements. Specifically:

  • The defendant must not have a prior drug conviction. PC 1000 is only available to first time offenders of a drug-related crime.
  • The offense charged must not involve any violence or threat of violence.
  • There is no evidence of any other drug-related violation not covered by PC 1000. That is, the present offense cannot be singled-out for diversion if there are other drug-related violations that are not eligible for PC 1000.
  • The defendant has never been terminated from probation or parole unsuccessfully.
  • The defendant has not been diverted due to a drug-related offense within the last 5 years. Even if the defendant successfully completed the requirements of diversion previously, the fact that he or she had been diverted within 5 years would disqualify the defendant from taking advantage of PC 1000.
  • The defendant does not have a felony conviction within 5 years of the alleged commission of the present drug-related offense.

If the defendant is eligible for diversion pursuant to PC 1000, the law states that the prosecuting authority shall file a declaration stating that the defendant is eligible with the court. In addition, the law requires that the defendant’s eligibility be made known to the defendant and his attorney. If the prosecuting authority makes the determination that the defendant is not eligible for diversion pursuant to PC 1000, the prosecuting authority must file with the court a declaration stating the grounds upon which ineligibility was determined. If a defendant is found not to be eligible for PC 1000 diversion, the defendant may seek a post-conviction appeal.

WHAT KIND OF DRUG OFFENSES ARE COVERED?

PC 1000 is only available to individuals charged with a drug-offense related to personal use. PC 1000 is not eligible to defendants charged with possession for sale. Some common offenses covered by PC 1000 are:

Health and Safety Code 11350 – possession of a schedule III, IV, or V drug
Health and Safety Code 11357 – possession of marijuana
Health and Safety Code 11364 – possession of paraphernalia
Health and Safety Code 11365 – presence in area where illegal drugs are being used with knowledge and intent to aid or abet its use
Health and Safety Code 11377 – possession of methamphetamine
Health and Safety Code 11550 – under the influence of drugs
Health and Safety Code 11358 – cultivation of marijuana, if the cultivation is for personal use
Health and Safety Code 11368 – forging a prescription, if the prescription is for personal use

HOW TO TAKE ADVANTAGE OF PC 1000

Generally speaking, if the defendant is found to be eligible for PC 1000 (and the defendant elects to take advantage of PC 1000), the following will occur at the hearing. First, the defendant will enter a plea of guilty to the charge(s). Next, the judge will suspend the criminal proceedings for a time period between 18 months to 3 years. Then, the judge will refer the defendant to a drug rehabilitative program that have been certified by the county drug program administrator or any free of charge program that have been deemed to be credible and effective by the county drug program administrator. The defendant may ask to be referred to an approved program in any county.

WHAT KIND OF EDUCATION AND TREATMENT PROGRAM

The exact drug treatment program will be different depending on what program the individual is referred to. Typically, the drug treatment program will involve weekly meetings and drug testing. To take advantage of PC 1000 diversion, the defendant should be ready and willing to allow the drug treatment program to analyze his or her urine for the purposes of detecting drugs in his or her system. It should be noted however, that this urine test result may not be used as basis for any new criminal proceeding or prosecution. Typically, the drug treatment program will last about 6 months.

FAILURE TO PARTICIPATE SATISFACTORILY IN THE DRUG TREATMENT PROGRAM

The goal of PC 1000 drug diversion is to provide education and treatment to first time drug offenders in lieu of sentencing these offenders to jail time. As such, satisfactory performance at the approved treatment programs is mandatory. If at anytime before the defendant has earned the dismissal the court, the prosecuting authority, or the probation department finds that the defendant is not performing satisfactorily, a court hearing will be held to determine whether the defendant should be terminated from the treatment programs and the judgment of guilt to be entered. Some common reasons for why such a hearing would be held is if: the defendant tests positive for drugs, the defendant fails to attend the treatment programs as instructed, the defendant fails to enroll in the program within the time period ordered, or any evidence tending to show that the defendant is not benefiting from treatment, education, or rehabilitation. In addition, an individual can be terminated from PC 1000 diversion if during the time the criminal proceedings are suspended the individual is convicted of a misdemeanor involving violence, convicted of a felony, or is otherwise shown to be an unfit candidate for diversion.

SUCCESSFUL COMPLETION OF DIVERSION

After the time period for which the judge suspended criminal proceedings, if the defendant has successfully completed the drug treatment program, the case against the defendant will be dismissed. Typically, the defendant will be required to pay a diversion restitution fee and/or an administrative fee.

RAMIFICATIONS OF HAVING A CASE DISMISSED PURSUANT TO PC 1000

Successful completion of PC 1000 diversion has many benefits. As previously mentioned, the case against the defendant will get dismissed. The law specifically states that once a defendant earns a dismissal pursuant to PC 1000, the arrest will be deemed to have never occurred. What this means is that upon dismissal of the case, the individual can legally answer that he or she has never been arrested or granted diversion in regards to the offense. With only a few very specific limitations, the individual do not need to disclose participation in diversion when applying for employment, benefits, certification, and/or licensing.

PROPOSITION 36 (SUBSTANCE ABUSE AND CRIME PREVENTION ACT OF 2000)

In the event that an individual is not eligible for PC 1000 due to a prior drug-related conviction, the individual may be eligible for Prop 36. Prop 36 is a way for individuals charged with certain drug-possession offenses to receive a probationary term in lieu of incarceration.

MAJOR DIFFERENCES BETWEEN PC 1000 AND PROP 36

There are some key differences between PC 1000 and Prop 36.

First, when an individual participates in PC 1000 the judgment of guilt is not entered. As described above, the judge will take the guilty plea but immediately thereafter suspend the criminal proceedings against the defendant to allow the defendant to earn a dismissal before entry of the guilty plea is possible. In Prop 36 however, the judgment of guilt is immediately entered and the defendant is simply granted a chance to earn a dismissal after the fact.

In addition, when participating in PC 1000, the defendant automatically earns a dismissal upon successful completion of the drug treatment program. Under Prop 36 however, the defendant is subjected to many other terms and conditions of probation for which the judge can take in to account in determining whether the case should be dismissed against the defendant. The burden is placed on the defendant to petition the court for a dismissal upon the successful completion of the drug treatment program pursuant to Prop 36.

The duration of the programs is also different. PC 1000 suspends the criminal proceedings for 18 months to 3 years. Under Prop 36 however, the drug treatment program can last only up to a year unless the court makes a finding in court that a longer treatment plan is necessary. In the event the court finds a longer treatment plan is necessary, the court may extend treatment twice for 6 months each time. Treatment under Prop 36 cannot exceed 2 years.

ELIGIBILITY

To be eligible for Prop 36, a defendant must meet certain eligibility requirements.

Specifically:

  • The defendant cannot have been previously convicted of a strike felony. A strike felony is any felony that is defined as serious and/or violent felony by the California Penal Code. The exception to this requirement is that a defendant is still eligible for Prop 36 if the strike felony was committed over 5 years ago and the defendant has: 1) not suffered another felony conviction that is not for non-violent possession of drugs and, 2) has not suffered a misdemeanor conviction that involved physical harm or threat of physical harm to another.
  • The current offense charged is a drug-related offense that involves possession for personal use only. While Prop 36 is available to defendants who have previously suffered convictions for drug-related offenses, Prop 36 is not eligible to anyone charged with an offense relating to possession for sale, manufacturing drugs, and/or cultivation of drugs.
  • The defendant must be deemed amendable to treatment and be willing to abide by the terms and conditions of probation.

WHAT KIND OF DRUG OFFENSE ARE COVERED?

PC 1000 and Prop 36 cover many of the same offenses. These include:

  • Health and Safety Code 11350 – possession of a schedule III, IV, or V drug
  • Health and Safety Code 11357 – possession of marijuana
  • Health and Safety Code 11364 – possession of paraphernalia
  • Health and Safety Code 11365 – presence in area where illegal drugs are being used with knowledge and intent to aid or abet its use
  • Health and Safety Code 11377 – possession of methamphetamine
  • Health and Safety Code 11550 – under the influence of drugs

Note however, PC 1000 is available for individuals charged with cultivating if the cultivation is for personal use. Prop 36 specifically excludes cultivation, production, and manufacture of drugs.

FAILURE TO PARTICIPATE SATISFACTORILY IN THE DRUG TREATMENT PROGRAM

If at any time the court, the prosecuting authority, or the probation department finds that the defendant is not in compliance with probation, and/or the treatment program, a probation violation hearing will be held. At the hearing, the court will revoke probation and re-evaluate the defendant’s amenability to the Prop 36 drug treatment program. If the court finds that the defendant is not amenable to the program, the defendant will be terminated from the program and lose the chance to earn the dismissal.

SUCCESSFUL COMPLETION OF DIVERSION

Upon successful completion of the drug program, the individual may petition the court to dismiss his or her case. The judge will consider whether the individual has indeed completed all the program requirements as well as consider whether the individual has been in “substantial compliance” with the terms and conditions of probation. If the court is satisfied with the individual’s performance, the court may dismiss the case against the individual.

RAMIFICATIONS OF HAVING A CASE DISMISSED PURSUANT TO Prop 36

Upon the court’s dismissal of the case, the same benefits from successfully competing PC 1000 diversion applies. That is, the arrest will be deemed to have never occurred. The individual does not have to disclose the arrest with only some very specific limitations.

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