Proposition 36, in its present condition, went into effect on November 6, 1012. The statute is designed to counter act the effects of the “Three Strikes (And You’re Out)” doctrine. Prop 36 allows for nonviolent drug offenders to complete a probationary sentence and drug rehabilitation program in place of a prison sentence. This is known as a drug diversion program.
What Is A Drug Diversion Program?
California Penal Code §1000 lays out the deferred entry of judgment program, also known as a DEJ. The code allows for eligible defendants convicted of particularized drug offenses to be diverted out of the criminal justice system and into a drug rehabilitation program. The basic protocol of diversion programs is: First, the judge will determine whether or not you are a good candidate for a particular diversion program. Then you will enter a guilty plea, and give the court permission to waive entering a sentence until you complete the diversion program. The judge gives you specific details of your program and you must satisfy each requirement. After successful completion, your drug charge will be dismissed. There are three major diversion programs under the California Penal Code §1000: Prop 36, California drug court, and San Francisco’s “back on track” program. Therefore, this is a broad umbrella under which Prop 36 applies.
The Three Strikes Law: Origin of Prop 36
The Three Strikes policy began in 1994, and has caused much contention throughout the years. While the original intention was to prevent repeat offenders, what has resulted is an unnecessarily overcrowded state prison system. In fact, the electoral campaign behind the law said the scheme intended to “keep murders, rapists, and child molesters behind bars, where they belong.” However, today, more than half of inmates sentenced under the law are serving sentences for nonviolent crimes.
The basic premise of the Three Strikes doctrine is that if an individual is convicted with a new felony and has a prior serious felony conviction on his/her record, then they are required to be sentenced to a prison term twicw the allotted time for the new felony. And if the individual has two or more prior felony convictions, then the law demands a state prison terms of 25 years to life. Hence, the name “Three Strikes.” Ultimately, California's Three Strikes law restricted San Diego criminal judge’s ability to review each case before establishing particularized sentences for each defendant.
New Proposition 36: Revisited and Revised
Prop 36 in its earlier form was not applicable retroactively; this means that already incarcerated or convicted individuals who did qualify were not allowed to petition to complete the diversion program. This was a huge issue, in that while Prop 36 afforded newly charged individuals the option to divert away from a prison term, it did not give already incarcerated individuals the same opportunity.
In 2012, Prop 36 was revised and voted into effect as “ A Change in the Three Strikes Initiative.” This is what we now know as Proposition 36. The law made two significant changes:
- Third strike offenders would now only be subject to the 25 to life sentence if the third felony was serious or violent in nature; and
- Those already serving the lengthy prison sentences as a result of the Three Strikes doctrine could now enforce the diversion program retroactively in order to reduce their term.
Deferred Entry of Judgment vs. Prop 36
- DEJ is applicable under Penal Code §1000 and applies to a wider variety of drug-related unlawful acts.
- Prop 36 is not an available to individuals with a violent or serious felony conviction under the Three Strikes law.
- A violent or serious felony conviction does not disqualify an individual from DEJ
- Successful Penal Code §1000 completion results in automatic dismissal of charges, however in Prop. 36 case, the judge has the discretion to determine whether or not to dismiss the charges.
Non-Violent Drug Offenses
These include possession, using or being under the influence of a controlled substance without special circumstances, transporting controlled substances for personal use. Not all persons convicted of a non-violent drug possession offense are eligible for probation and rehabilitation treatment under Prop 36.
California Penal Code §1210.1(b) clearly lists who cannot be eligible under Prop 36:
- Any person incarcerated within the last five years for a serious or violent felony;
- Any person convicted in the same proceeding of a non-drug related misdemeanor or other felony;
- Any person who possessed a firearm during the commission of the felony in discussion;
- Any person who refuses treatment;
- Any person with two separate drug related convictions, who previously partook in Prop 36 twice before, and who is found by the court by clear and convincing evidence to be unable to rehabilitate themselves with any and all forms of available drug treatment.
It is critical to understand that Prop 36 does not include offenses where controlled substance is being distributed or manufactured.
Relevant Statutes to Proposition 36
The following list includes a selection of some of the qualifying drug possession offenses:
- Health & Safety Code 11377 (personal possession of a controlled substance)
- Health & Safety Code 11357 (less than an ounce of marijuana)
- Health & Safety Code 11550 (under the influence of a controlled substance)
These are the violations, by statute, that do not qualify for Prop 36:
- Health & Safety Code 11351 (possession for sale)
- Health & Safety Code 11352 (transporting/selling controlled substance)
- Health & Safety Code 11358 (cultivating/growing marijuana without license)
- Health & Safety Code 11359 (possessing marijuana for sale)
- Health & Safety Code 11360 (transporting/selling marijuana)
- Health & Safety Code 11368 (forging a prescription)
- Health & Safety Code 11378/11379 (sale of “less serious” controlled substances)
- Health & Safety Code 11370.1a (possessing controlled substance while armed with a firearm)
Proposition 36 Sentence
Here are the basics of how to receive a coveted Proposition 36 sentence:
- You must plead guilty/no contest to a nonviolent drug possession offense;
- You must be convicted of that offense by either a judge or jury in California;
- You must be a parolee and have committed the nonviolent drug possession offense while on parole or violate a drug-related condition of your parole.
Successful Completion of Prop 36
Once you have successfully completed the Prop 36 program, you can petition to have your conviction dismissed by the court. The judge will make the determination of whether your program was successful and whether your conviction should be dismissed based on the following:
- You have abided by all of the terms in your Prop 36 program; and
- It is reasonable to believe that you will no longer be a drug abuser.
Drug charges and convictions are serious matters. These charges are highly technical and can get complicated quickly; they require a deep knowledge in the area. A lawyer who practices this specialized area of criminal defense will review the facts of your case, explain your options, and advise you of the possible consequences. But for the best possible defense, you should speak with a local attorney familiar in the specific judicial system your case is presented before. Local criminal defense attorneys know how local judges and local prosecutors work, and can use that knowledge to better represent you. While this may sound easy, but the reality is quite complicated. To make sure you get the best legal scenario possible, you should talk to a skilled criminal defense attorney. Prop 36 could get you on the right track to making positive life changes. Call the Monder Law Group today for more information.