People v. Floyd

BROWN, J., Dissenting.

For the reasons explained below, I disagree with the majority’s conclusion that the rule of lenity does not apply in this case. (Maj. opn., ante, at p. 188.) In my view, when considered in its entirety, Proposition 36 may reasonably be construed to extend to defendants whose conviction for a nonviolent drug offense was not final as of July 1, 2001. In reaching a contrary conclusion, the majority takes an unnecessarily narrow assessment of the electorate’s intent and in doing so fails to fully effectuate the express purpose of the initiative. I respectfully dissent.

The question here is whether defendant may invoke the principle of In re Estrada (1965) 63 Cal.2d 740, 745-748 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ], providing that, in the absence of a saving clause, ameliorative legislation applies retroactively to all convictions not yet final as of the effective date. The majority identifies the requisite saving clause as section 8, which states that “[e]xcept as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively.” (Prop. 36, § 8, 1 as approved by the voters, Gen. Elec. (Nov. 7, 2000) (Proposition 36), reprinted at 51 West’s Ann. Pen. Code (2003 supp.) foll. § 1210, p. 221.) Yet, the meaning of this section is hardly self-explanatory. Since prospective application is not qualified in relation to the date of offense or finality of conviction, it lacks the specificity generally required of an effective saving clause. (See, e.g., People v. Holland (1983) 141 Cal.App.3d 795, 797 [ 190 Cal.Rptr. 552 ] [legislation specified ameliorative provisions “shall apply only to offenses committed on or after” particular date (italics omitted)]; People v. Superior Court (Martin) (1982) 132 Cal.App.3d 658, 663 [ 183 Cal.Rptr. 563 ] [statute specified “ ‘provisions of the bill shall not be construed to affect any person under commitment prior to the effective date of the bill’ ”]; Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 114 [ 150 Cal.Rptr. 743 ] [statute contained express provision that it applied only to offenses committed after a date certain]; Pen. Code, § 1203.4, subd. (a) [“This subdivision shall apply to all applications . . . filed on or after November 23, 1970”]; see generally In re Estrada, at p. 747.) Accordingly, the scope of section 8 becomes a matter of discerning the electorate’s intent, which can only be done by considering the larger context of Proposition 36.

*193 The “Purpose and Intent” of Proposition 36 is set forth in section 3 of the initiative: “The People of the State of California hereby declare their purpose and intent in enacting this act to be as follows:

“(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;

“(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

“(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.” (Prop. 36, § 3, reprinted at 51 West’s Ann. Pen. Code, supra, foll. § 1210, p. 221.)

Plainly, each of these goals is best served by maximizing the number of eligible defendants. Other provisions of Proposition 36 also support an expansive application. For example, if a defendant on probation for a nonviolent drug possession offense as of July 1, 2001—that is, a probationer whose conviction is already final as of the effective date—violates probation, he or she may still be accorded the benefits of the initiative. (Pen. Code, § 1210.1, subd. (e)(3)(D).) Even a second violation of probation will not render a defendant ineligible. (Id., subd. (e)(3)(E); see id., § 3063.1 [parolee eligibility]; see also Health & Saf. Code, §§ 11999.5, 11999.6 [Prop. 36 funding cannot be used “to supplant funds from any existing fund source or mechanism currently used to provide substance abuse treatment”].) As the Court of Appeal in In re DeLong (2001) 93 Cal.App.4th 562, 569 [ 113 Cal.Rptr.2d 385 ], observed, “In view of Proposition 36’s provisions extending it to defendants who were already on probation or on parole at the time the initiative took effect, no rationale appears to exclude from its wide reach the limited class of defendants who, as of the effective date, had been adjudged guilty and were awaiting sentencing.” Given the legislative intent to remove certain nonviolent drug offenders from the criminal justice system not only for their own benefit but for the benefit of society as a whole through the reduction in incarceration costs and drug-related criminal activity, similar reasoning should apply to defendants awaiting finality of their convictions as of the effective date.

The fact that section 8 delayed the effective date of Proposition 36 almost eight months from the time of enactment does not undermine the conclusion the voters intended broad application. The sole reason for the postponement *194 was practical: time was necessary to enable a sufficient number of treatment facilities to be licensed or certified. (See In re DeLong, supra, 93 Cal.App.4th at pp. 569-570.) “Thus, the voters delayed the effective date to July 1, 2001, so that treatment facilities could be in place, not out of a desire to preserve the stricter sentencing scheme for nonviolent drug offenders for a few more months” (id. at p. 570) or to limit unnecessarily the number of defendants eligible once the programs became operational. A defendant whose conviction was not final as of July 1, 2001, was still “in the system” and inclusion would not compromise the need for time to get treatment facilities functioning by that date. (Cf. In re Pedro T. (1994) 8 Cal.4th 1041, 1046 [ 36 Cal.Rptr.2d 74 , 884 P.2d 1022 ] [consideration of practical effect supports prospective application].)

Nor does this construction render section 8 surplusage. Given the reason for the delayed effective date, the voters could reasonably have wanted to exclude defendants whose convictions became final between November 7, 2000 and July 1, 2001. Under the rule of In re Estrada, supra, 63 Cal.2d 740 , these defendants might make a claim to the initiative’s amelioration. Without facilities fully operational, however, the difficulty of working them into the program could have been seen as outweighing any benefit. Therefore, as to this class of defendants the electorate designated the provisions prospective while preserving—again, under the rule of Estrada—the benefits for defendants whose conviction was not yet final as of July 1, 2001.

Nothing in the ballot arguments negates such a conclusion. The majority cites a statement by the proponents of Proposition 36 that “ ‘[i]f Proposition 36 passes, nonviolent drug offenders convicted for the first or second time after 7/1/2001, will get mandatory, court-supervised treatment instead of jail.’ [Citation.]” (Maj. opn., ante, at p. 187-188.) This single reference to the effective date is ambiguous at best, as is the Legislative Analyst’s notation that the provisions of Proposition 36 are “effective July 1, 2001.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) analysis of Prop. 36 by the Legis. Analyst, p. 23.) The effective date had no particular significance to the arguments for or against or in the Legislative Analyst’s explanation of the initiative’s salient changes in the law and fiscal impact, ather, the emphasis throughout the ballot materials was on removing nonviolent drug offenders from the criminal justice system both to assist them in becoming drug free and, of equal importance, to save taxpayers millions of dollars otherwise required to incarcerate them. Moreover, “the term ‘conviction’ [or ‘convicted’] has no fixed definition and has been interpreted by the courts of this state to have various meanings, depending upon the context in which the word is used.” (People v. Rhoads *195 (1990) 221 Cal.App.3d 56, 60 [ 270 Cal.Rptr. 266 ]; see Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073-1074 [ 194 Cal.Rptr. 717 ].) In at least one context, decisions of this court have held a defendant has not been finally convicted if an appeal is pending. (In re Riccardi (1920) 182 Cal. 675, 681 [ 189 P. 694 ]; People v. Treadwell (1885) 66 Cal. 400, 401 [ 5 P. 686 ].)

The majority’s insistence on adopting a narrow focus to determine the electorate’s intent has rendered section 8 the “straightjacket” the court in Estrada warned against (In re Estrada, supra, 63 Cal.2d at p. 746 )—as this case precisely illustrates. Defendant was convicted of violating Health and Safety Code section 11350, subdivision (a), for possessing one-quarter gram of cocaine. Because he had several prior convictions for serious or violent felonies, he was sentenced to 25 years to life in prison. (See Pen. Code, §§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) The ballot argument in favor of Proposition 36 explained that a year of drug treatment costs about $4,000 for each participant, while the yearly cost for a state prisoner is $24,000. (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26.) Even one year’s incarceration of defendant will far exceed the amount taxpayers would pay to divert him from the criminal justice system altogether. Since he will not be eligible for parole for many years, the actual cost will likely be “the wasteful expenditure” of hundreds of thousands of dollars for an individual “who would be better served by community-based treatment.” (Prop. 36, § 3, subd. (b), reprinted at 51 West’s Ann. Pen. Code, supra, foll. § 1210, p. 221.) Nor is this an isolated situation. The facts of People v. Fryman * (Cal.App.), are virtually identical.

As the foregoing demonstrates, there are two reasonable interpretations of Proposition 36 with respect to whether defendant comes within its ameliorative provisions. Under the rule of lenity, he is entitled to the benefit of the doubt as to which should prevail. (Ex parte Rosenheim (1890) 83 Cal. 388, *196 391 [ 23 P. 372 ].) This result is all the more compelling since the majority’s construction frustrates rather than promotes the purpose and intent of the initiative. (Cf. In re Pedro T., supra, 8 Cal.4th at p. 1046 [retroactive application would conflict with express legislative intent].)

I dissent.

Hereafter, unless otherwise indicated references to section 8 are to the uncodified version in Proposition 36.

Reporter’s Note; Review granted on July 31, 2002, S107283. On September 10, 2003, the cause was transferred to Court of Appeal, Sixth Appellate District, with directions to vacate and reconsider in light of this opinion.