Proposition 36

The State Of California Substance Abuse and Crime Prevention Act Of 2000, also called Proposition 36, enables nonviolent drug offenders to be enrolled in diversionary treatment centers. Offenses that attract Proposition 36 sentences are those performed against the Health and Safety code, denoting the use, possession, transportation of controlled substances, and being under the influence of the controlled substances. This law requires that a defendant charged with such a non-violent drug-related crime serves time in rehabilitation or a pre-release program instead of the already overcrowded penitentiaries, and with successful completion, have their charges dismissed.

This law also requires that offenders charged with drug-related offenses for the first or second time take a 12-month substance abuse treatment, which can be extended by two or six months where necessary. Parolees who violate their parole terms by committing other subsequent nonviolent drug offenses while on probation face diversionary proposition 36 sentences to undergo court-approved drug rehabilitative treatment. These programs are not inclusive of those handled by prison services, but rather, they have the following as core functions;

• Drug education
• Outpatient and residential treatment options
• Narcotic replacement and detoxification services
• After treatment services
• Drug tests and compliance support

Proposition 36 describes nonviolent drug offenses as crimes in contrast to the Health and Safety laws. These include the use of a substance listed as a controlled substance or a narcotic under The United States Controlled Substances Act and being under the influence of the drugs. Transporting or possessing any of these narcotics without other underlying charges will qualify a defendant for a Proposition 36 diversion sentence. These substances include;

• Cocaine
• Heroin
• Ecstasy (‘X’)
• Ketamine (‘Special K’)
• Gamma-hydroxybutyric acid (‘GBH’)
• Methamphetamines
• Marijuana
• Hallucinogens such as Phencyclidine (‘PCP’)
• Prescription drugs like Codeine and Hydrocodone (‘Vicodin’)

Nonviolent drug offenses that qualify for proposition 36 include possession of a narcotic or controlled substance and being under the influence of the said drug. Transportation of drugs without the intention to sell also falls under nonviolent drug offenses. Gerald, for instance, is walking down a trail in Vista while smoking pot. The trail ends, and suddenly he's on a road where incidentally, the first vehicle that comes from the opposite direction is a police cruiser.

The law enforcement officers, thinking he’s stranded and needing help pull up beside him; that’s when they smell the marijuana that Gerald is now trying unsuccessfully to conceal. With probable cause to search him, the diligent officers find Gerald’s stash of cannabis that is more than the legalized amount and he is arrested for possessing narcotics with evidence suggesting usage. Gerald pleads guilty and because he is a first time offender and the marijuana wasn’t for sale, he is sentenced by Proposition 36 for drug addiction treatment instead of going to prison.

The California Penal Code designates as not eligible for diversionary Proposition 36 a defendant convicted in the same proceeding of a non-drug related felony or misdemeanor; and an offender incarcerated within five years of a violent felony or any serious offense. Possession of a firearm in the commission of a drug-related crime or a defendant not complying with diversionary treatment procedures faces expulsion from the program. An offender with two different drug charges and has been a past Proposition 36 participant more than once is also ineligible having been found by the court to be indifferent to drug treatment through clear and transparent evidence.

In the above cases, the defendant is sentenced to a 30-day jail term. Offenses that don't fall under Proposition 36 vestiges are;

• Possessing a narcotic for sale
• Selling or transporting narcotics unless for personal use
• Possessing, selling or transporting marijuana
• Possession or transporting of methamphetamine and other controlled substances
• Possession of drugs while in incarceration

Drug-related crimes that are considered to be beyond possessing, transporting or using and therefore ineligible for Proposition 36 include cultivation of marijuana whether for personal use or sale, possession of a firearm together with the controlled substances and forging or presenting fake prescriptions to obtain controlled substances. The offense may qualify for Proposition 36, but the offender must also be eligible. Factors that will disqualify a defendant include; prior convictions and having been released from prison in less than five years or convictions for offenses other than the nonviolent narcotic possession or misdemeanors that involve grievous bodily harm.

Such offenses that can render a defendant ineligible for Proposition 36 and are not dismissible by a judge. Juvenile sentencing is also not considered a criminal conviction and cannot prevent the offender for Proposition 36 eligibility since they are not regarded as criminal offenses despite the degree of seriousness. If a defendant is convicted in the same proceeding as a misdemeanor unrelated to drugs or felony; the nonviolent narcotic offense of either a non-drug related misdemeanor or a felony, they will not be eligible for the program. These misdemeanors that don’t relate to drugs are the ones that do not involve;

• Usage or possession of narcotics or drug paraphernalia
• Presence in the vicinity of drug use
• Registration failure as a drug offender
• Activities were similar to usage or possession offenses

California law holds that the Vehicle Code for ‘driving under the influence of narcotics’ relates as such to a misdemeanor that is prosecuted as drug use. If an offense involves endangering other people's lives, this means it cannot be classified as nonviolent. Distribution or selling of narcotics harms public safety and therefore disqualifies a defendant from Proposition 36. In such instances, however, the court has the discretion to dismiss the alternate charge and make a defendant eligible for the rehabilitation program.

If Gerald, in our example above, was driving while smoking and was pulled over for a broken tail light, any marijuana found in that vehicle would constitute transportation of narcotic; while the joint he had just smoked would incur a charge of driving under the Influence of drugs (DUID). Both these offenses have a more serious violent underlay since taking drugs from one place to another is distribution, and the DUID misdemeanor places the public in harm’s way. Gerald would therefore not be eligible for drug treatment under Proposition 36 since the misdemeanor does not relate to drugs and is not dismissible, and thereby he will head straight to jail.

Factors that lead to a defendant’s disqualification to Proposition 36 are;

• If a defendant was armed with a deadly weapon such as a firearm during the commission of a nonviolent drug possessing crime
• The defendant violated probation treatment guidelines as stipulated and has previous participation in two programs
• A defendant has two convictions separately for nonviolent drug possession and is sentenced under Proposition 36 in both offenses, or the court believes they shall not benefit from treatment

In these instances, a defendant’s eligibility may be voided, and a minimum 30-day jail sentence is served.

Sometimes, a drug-related offense may be eligible for Proposition 36, but the defendant fails to qualify. A hearing to determine a defendant’s eligibility for Proposition 36 probation takes place to assess suitability to the program. This precedes the drug court case and if he/she is acquitted, they can be released; however if found guilty, the rehabilitation option applies instead of prison time. To qualify for a Proposition 36 sentence, a defendant must plead guilty to a nonviolent drug possession or influence charge. The defendant may also make a nolo contendere or no contest to the charges against them, and be found guilty following a court trial by the judge or jury.

A parolee who commits a nonviolent drug offense while on parole is also eligible for drug treatment under proposition 36. Such a defendant’s parole is then modified to include requirements and conditions that may include community service, counseling in a family setting and vocational training. Unless the parolee or program participant violates these conditions, a California court cannot impose incarceration as a probation requirement.

A Proposition 36 participant that is not responding or benefitting from drug treatment may have their probation or parole revoked, and an incarceration sentence based on conviction passed. To determine a defendant’s response to treatment, issues for consideration are whether the violation of rules at a treatment center is severe and if there is a repetition of violations to program rules that inhibit participant’s ability to receive treatment. A participant may also continually refuse or has expressed the desire not to be part of the treatment program.

Under some conditions, the court may still allow a parole or probation violator to take part in Proposition 36 sentencing. Incarceration of not more than 30 days or other modifications to a defendant's probation might be passed to encourage full participation in treatment programs. If there is no reinstatement of probation, the court sentences a defendant on underlying offenses. A violation of drug-related probation includes conditions that relate to testing, treatment, vocational training, counseling, and employment. A hearing is conducted where the prosecution provides evidence to prove that a defendant may be a danger to society.

To further encourage a defendant's compliance, the court makes the reinstated probation conditions more stringent; and up to a 48-hour jail sentence. A residential treatment center or jail detox facility is usually ordered for violations that relate to recent substance abuse. A second proposition 36 violation will incur the court's revocation of probation when the prosecution proves that the defendant’s response to treatment failure will result in their being a danger to society. 

The defendant faces a prison or jail sentence of up to 120 days while the court deliberates on whether to revoke probation; and if found culpable for the violation, is no longer eligible for a Proposition 36 sentence. At the third violation hearing, the defendant may be rendered ineligible for probation; thereby receiving incarceration. Defense counsel must, therefore, prove that the defendant can be rehabilitated further and is not a societal danger.

Successful completion and compliance with conditions for Proposition 36 mean the treatment provider's course has been exhausted except for continual services like substance replacement therapy. A defendant can then seek dismissal of charges leading to conviction where the court shall aspire to find proof of addiction cure.

An expunged conviction releases a defendant from liabilities and penalties accrued, with release from detention or a residential treatment facility. All rights and privileges are restored except that of possessing a concealable firearm. The advantageous factors of probation sentences are the lack of a criminal record, though disclosure privileges end with any legal inquiry, public or peace officer applications and law enforcement queries.

The original enactment of the California three strike law in 1994 meant that defendants who were convicted of subsequent felonies would serve twice the established sentence. That is, such defendants would get a strike for each felony they commit, and the sentences would increase depending on the number of strikes.

After voter approval of the three strikes law, elements of this law were modified by Proposition 36. This meant that an imposition of a life sentence was only passed when violators of the diversion program committed a new felony that was deemed as violent or serious. After the 2012 ballot initiative, California’s courts determined that for those offenses that don’t qualify as violent, re-sentencing was authorized by the proposition 36 adoptions for offenders in their 3rd strike conviction.

During the petition for proposition 36 at circulation stage, the original title given to Proposition 36 by officials was, ‘Three Strikes Law: Sentencing for Repeat Felony Offenders Initiative Statute.' The driving factor of this modification is that the re-sentenced third strike offender doesn’t pose unreasonable risks to people safety. Offenses had to be non-violent or non-sexual, non-drug offenses or those that did not involve a firearm. Where the prior convictions involved child molestation, murder, or rape, the law was to maintain the life sentence on the third strike offender.

The approval of Proposition 36 impacted approximately 3,000 convicted felons who were serving life terms under the three strikes law. Those offenders, whose third strike sentence was for a nonviolent crime achieved eligibility and petitioned California’s courts for new, reduced sentences. Estimated cost savings for the state after implementation of Proposition 36 came to between 150 and 200 million a year. A report by the Associated Press five months after Proposition 36 was approved noted that statewide change for the enforcement of the three strikes law was being unequally implemented across California counties.

For instance, in San Bernardino County, 33 % of the 291 offender serving third strike convictions were granted release under Proposition 36. However, in Los Angeles and San Diego counties, only 6 % of the 1,300 eligible convicts had their sentences reduced. The statewide average was at 16% at that time while courts have invalidated California three-strike sentences if they are deemed inappropriately harsh. For instance, a registered sex offender who was late in updating his annual registration was convicted and since he had two prior felony convictions; the most recent being an offense committed 12 years earlier, 28 years to life sentence was passed.

On appeal, the court passed that because no harm came from his late registration, the punishment was harsher than normal had it not been for prior strikes. Sixteen months to three years of incarceration or diversion would have sufficed as the violation didn't indicate that the defendant had the potential to commit another crime or be of further danger to society and thus the penalty was grossly disproportionate to the crime. This meant that there was an unconstitutional gross violation of people’s rights according to the Eighth Amendment that regulates the intensity of punishment or bail given to a defendant.

The Proposition 36 Program may be what you need to avoid spending some time in prison or jail, take advantage of the drug treatment program, and avoid harsh punishments for drug-related crimes. Still, it may be challenging for you to understand everything that is required for you to successfully complete the program, whether the program is better than a jail or prison sentence, or whether you are eligible for the program. That is why the Vista Criminal Attorney Law Firm is here to help you. We can help you understand the above issues and ensure your rights are observed. If you are in Vista, CA or the greater North County, you can contact our Vista criminal lawyer at 760-691-1551 today!