Pubdate: Wed, 16 Jan 2002
Source: Los Angeles Times (CA)
Copyright: 2002 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Anna Gorman, Times Staff Writer
Bookmark: http://www.mapinc.org/prop36.htm (Substance Abuse and Crime
Prevention Act)

JUDGES EXTEND DRUG REHAB FOR FELONS

Courts: Appellate Justices Rule That Proposition 36 May Apply To Those Who 
Have Been Out Of Prison Less Than Five Years.

A state appellate court ruled Tuesday that judges can allow defendants 
convicted of felonies in recent years to receive drug treatment under 
Proposition 36.

The ruling, which could affect hundreds of defendants convicted of minor 
drug use, will help clear up confusion among California judges over who is 
eligible for the initiative. The 2nd District Court of Appeal in Los 
Angeles issued the published opinion a few days after hearing oral arguments.

Approved by 61% of state voters in November 2000, Proposition 36 allows 
defendants convicted of using, possessing or transporting drugs for 
personal use to receive treatment instead of jail time. But the statute 
read that defendants who have been convicted of serious or violent felonies 
are eligible for drug treatment only if they have been out of prison for 
five years. Since Proposition 36 took effect more than six months ago, 
judges have been divided about whether they had the power to dismiss prior 
felony convictions for the purposes of sentencing a defendant to drug 
treatment. Los Angeles County Superior Court Judge Ana Maria Luna said she 
believed Proposition 36 did not allow her that power. Luna praised 
Tuesday's ruling for enabling her to place defendants who need help into 
rehabilitation programs.

But she said judges should be cautious when they refer defendants with 
violent felony convictions to treatment programs. "In exercising that 
discretion, the court is going to have to look at the overall criminal 
behavior of the individual . . . and if the person is at a point in their 
life that they are ready for treatment," Luna said.

In October, the same appellate court cleared up another area of 
disagreement when it ruled that the initiative applies to cases of 
nonviolent offenders convicted but not sentenced before the measure took 
effect July 1.

Tuesday's ruling came in the case of Ronald Lee Varnell, who was charged in 
May 2001 with possession of methamphetamine. Prosecutors argued that 
Varnell was not eligible for Proposition 36 treatment because he was 
convicted in 1995 of assault with a deadly weapon and was released three 
years before last year's drug arrest. Defense attorneys asked the judge to 
dismiss the conviction and refer Varnell to drug treatment.

Superior Court Judge Joan Comparet-Cassani agreed to the dismissal so 
Varnell's sentence would be cut in half to 16 months in prison, but she 
denied his request to enter a drug treatment program.

In their 17-page ruling, the appellate justices wrote that judges have long 
had the authority under state law to dismiss prior felony convictions for 
purposes of sentencing. Because the statewide proposition did not prohibit 
the use of that law, the justices wrote that "we must conclude that power, 
firmly embedded in our criminal jurisprudence, coexists with the sentencing 
scheme at issue."

The justices directed Comparet-Cassani to hold a new sentencing hearing for 
Varnell, but did not require her to place him in drug treatment.

Deputy Public Defender Alex Ricciardulli said the appellate court decision 
empowers trial judges and "further extends the umbrella of rehabilitation" 
to defendants who would have been disqualified otherwise.

But Marc Nolan, who argued the case for the state attorney general's 
office, said the ruling "doesn't necessarily change the result in this case 
or in any other case." The ruling doesn't say judges have to dismiss 
convictions to make defendants eligible for Proposition 36, he said.

Nolan said his office has not decided whether to appeal the court's decision.
- ---
MAP posted-by: Keith Brilhart