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Name: In re Varnell
Case #: S104614
Court: CA Supreme Court
District CalSup
Opinion Date: 06/19/2003
Subsequent History: None

The trial court relied on petitioner’s prior serious felony conviction and resulting prison term within the previous five years, to deem him ineligible for mandatory drug treatment and probation under Proposition 36. The Court of Appeal held that the trial court had the power under Penal Code section 1385 to disregard petitioner’s prior history, even though petitioner’s ineligibility was not a charge or allegation in the information that could be dismissed, and remanded for the trial court to reconsiders its sentence. The Supreme Court granted review in order to determine whether a trial court may rely on section 1385 to do something other than dismiss the charges or allegations in a criminal action. The Court reversed. The trial courts may not use section 1385 to disregard sentencing factors that are not themselves required to be a charge or allegation in an indictment or information. An accusatory pleading need not allege petitioner’s ineligibility for Proposition 36 treatment, nor the facts underlying that ineligibility. In the absence of an allegation, there was nothing to dismiss. This holding best accords with the intent of Proposition 36, which was strictly limited to those who have not been convicted of prior serious or violent felonies.