Opinion
B158353.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. DONALD WILLIAMS, Defendant and Appellant.
Harry I. Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Victoria B. Wilson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Donald Williams appeals from judgment entered (order granting probation) and contends the trial court erred in concluding he was not eligible for treatment under Proposition 36. For reasons explained in this opinion, we reject this contention and affirm the judgment.
FACTUAL
AND PROCEDURAL SUMMARY
On May 4, 2000, appellant pled guilty to one count of possession of a controlled substance (Count 1) (Health & Saf. Code, § 11350, subd. (a)) and nolo contendere to one count of driving under the influence of drugs (Count 2) (Veh. Code, § 23152, subd. (a)). Entry of judgment in count 1 was deferred for a period of 24 months with the understanding that upon successfully completing the requirements of the program, the charge would be dismissed. As to count 2, imposition of sentence was suspended and defendant was placed on summary probation for 36 months upon certain terms and conditions.
Following completion of his diversion program but before his case was dismissed, Williams was arrested for possession of a controlled substance in Orange County. As a result, the court terminated the deferred entry of judgment and criminal proceedings were reinstated . Thereafter, the court placed defendant on formal probation for 36 months upon certain terms and conditions.
While initially the trial court found Williams eligible for sentencing under the provisions of Proposition 36, thereafter, the court "reversed itself" and found Williams ineligible because driving under the influence, a violation of Vehicle Code section 23152, was a misdemeanor not related to the use of drugs.
DISCUSSION
Appellant contends the trial court erred in concluding he was not eligible for treatment under Proposition 36 and claims his conviction for driving under the influence of drugs was a misdemeanor related to the use of drugs within the meaning of Penal Code section 1210.1, subdivision (b)(2).
Penal Code section 1210.1 provides in pertinent part, "(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. . . . [P] (b) Subdivision (a) does not apply to either of the following: [P] . . . [P] (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony."
Penal Code section 1210, subdivision (d) provides, "The term misdemeanor not related to the use of drugs means a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)."
"In November 2000, the voters of California passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, codified at [Penal Code] sections 1210, 1210.1, and 3063.1. In general, Proposition 36 requires probation and drug treatment, rather than incarceration, for a defendant convicted after its effective date of a nonviolent drug possession offense, such as transportation of methamphetamine for personal use. (§§ 1210.1, subd. (a), 1210, subd. (a).) [P] However, under [Penal Code] section 1210.1, subdivision (b)(2), Proposition 36 sentencing is not available to any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. [Citation.] The phrase, a misdemeanor not related to the use of drugs is statutorily defined as a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1). [Citation.] Consequently, a person convicted of a nonviolent drug possession offense cannot avail himself of the mandatory probation provision of [Penal Code] section 1210.1, if he was convicted in the same proceeding of a misdemeanor unrelated to drugs." (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1206.)
Proposition 36 explained its intent, among other things, was "( a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [P] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration-and reincarceration-of nonviolent drug users who would be better served by community-based treatment; and [P] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (See Historical and Statutory Notes, 51 Wests Ann. Pen. Code (2003 supp.) foll. § 1210, p. 221.)
Appellant contends driving unsafely while under the influence of drugs is a drug related activity that is similar to the simple possession or use of drugs and should not be excluded from the protection of Proposition 36. While driving under the influence of a drug may involve the simple possession or use of drugs, it also involves the additional and dangerous act of driving while impaired, creating a danger to the public. Thus, it is not "related to the use of drugs" within the meaning of Penal Code section 1210 and precludes sentencing under Proposition 36. (See People v. Goldberg, supra, 105 Cal.App.4th 1202, 1210.)
This issue is currently before the California Supreme Court in People v. Canty (2002) 100 Cal.App.4th 903, review granted Oct. 16, 2002 (S109537); People v. Walters (2002) 103 Cal.App.4th 936, review granted Jan. 22, 2003 (S112291); People v. Garcia (2002) 103 Cal.App.4th 1228, review granted Feb. 11, 2003 (S112688); Trumble v. Superior Court (2002) 103 Cal.App.4th 1011, review granted Jan. 29, 2003 (S112339), and others.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J., CURRY, J.