KMAX: News of the West

Supreme Court tells judges not to skirt voter intent of Prop. 36

By DAVID KRAVETS
AP Legal Affairs Writer

SAN FRANCISCO (AP) California judges cannot override the intent of Proposition 36 by granting treatment to low-level drug offenders who have recent criminal histories, the state's highest court said in its first ruling on the voter-approved initiative..

The California Supreme Court ruled Thursday that if the electorate's will is to be followed, drug offenders who have committed felonies and were in prison within five years of a narcotics arrest are not eligible for leniency under the measure.

Any other policy violates the initiative's plain language, the justices said.

``We believe our holding best accords with the ballot summary, argument and analysis of Proposition 36 distributed to voters,'' Justice Marvin R. Baxter wrote for the unanimous court.

The measure, which took effect July 2001, allows people arrested for possessing drugs for personal use to go to treatment instead of jail. Those who complete the so-called drug diversion program could have their arrests removed from their records.

Thursday's decision overturns a Los Angeles appeals court, which ruled last year that judges had the power to grant drug treatment automatically even if the offender has committed a felony and was jailed within five years of their drug arrest.

The lower court, however, reasoned that the state's top court in 1996 granted judges the power to hand out lesser sentences to three-strikes defendants facing life terms.

But in the case of Proposition 36, in which more than 20,000 people have received treatment instead of jail time, Proposition 36 provided judges no such wiggle room, the Supreme Court ruled.

Lawyers speculated that perhaps only a handful of unqualified drug defendants were wrongly diverted to drug treatment programs. Still, defense attorneys were hoping the Supreme Court would open the Proposition 36 door to more defendants.

``A judge now can't simply point to Prop. 36 and give drug treatment,'' said Alex Ricciardulli, a Los Angeles County deputy public defender.

The case concerned Ronald Varnell, who was arrested last year with a small amount of methamphetamine. He was sentenced to 16 months in prison.

The appeals court, however, said he was eligible for drug treatment instead of prison even though he had a recent assault conviction and was imprisoned less than five years ago.

``The Supreme Court's decision today is consistent with what the voters were told on who would be or not be eligible under Proposition 36,'' said Marc Nolan, a California deputy attorney general. ``They had no reason to believe that judges would be authorized to make exceptions like that.''

In a related case, meanwhile, the justices are expected to rule shortly on a different Proposition 36 eligibility requirement that could affect hundreds of cases.

That dispute concerns whether the measure applies solely to eligible drug offenders arrested on or after July 1, 2001, when the measure went into effect. Defense lawyers argue that the proposition should apply to eligible drug offenders whose cases were pending before that date.

That case is People v. Floyd, S105225.

The case decided Thursday is In re Ronald Lee Varnell, S104614.

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Editors: David Kravets has been covering state and federal courts for a decade.

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