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Name: People v. Westbrook
Case #: B158267
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 07/19/2002
Subsequent History: None

For purposes of eligibility for treatment under Proposition 36 (Pen. Code, sec. 1210.1) findings under the juvenile delinquency proceedings are not "convictions" of a serious or violent felony. Thus, the fact that appellant had been found to have committed a robbery in a delinquency proceeding did not render him ineligible for treatment under Prop 36 when he was later convicted of cocaine possession as a…

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Name: People v. Garcia
Case #: C038797
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/07/2002
Subsequent History: Rev. granted 8/28/02. Depublished.”Due to death on 9/20/02 of Eric Patric Garcia, casue trans. to Third DCA with dir. to enter order permanently abating all proceedings...1/15/03.

The misdemeanor petty theft of drugs, the possession of which is charged as a felony, did not disqualify a defendant from the benefits of Proposition 36. Here a licensed vocational nurse at a nursing home stole fentanyl and syringes, and ingested most of the fentanyl. When a person steals drugs for the sole purpose of consuming it and the person immediately ingests the drug, the theft involves the simple possession or use of the…

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Name: People v. Henkel
Case #: A096715
District 1 DCA
Division: 2
Opinion Date: 05/02/2002
Subsequent History: None

Here, Division 2 of the First District Court of Appeal follows the trend set by the Second District (Division 5) and the Fourth District (Division 2) in holding that based on the language of the statute as well as legislative history, the five-year "washout" period required by Proposition 36 refers to the five-year period immediately preceding the commission of the current…

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Name: People v. Superior Court (Turner)
Case #: B156011
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 04/24/2002
Subsequent History: Rev. denied 7/10/02.

Proposition 36 expressly excludes criminals who have not been free from prison custody for five years. Based on the clear language of the statute as well as the legislative history, the appellate court here concluded that the five-year period referenced is the five-year period immediately preceding the commission of the current…

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Name: People v. Cano
Case #: B152598
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/24/2002
Subsequent History: Rev. denied, opinion withdrawn by order of court 7/10/02. Depublished.

Appellant admitted a violation of his probation for a conviction of cocaine possession. The record did not state the nature of the violation. At his sentencing hearing, the trial court refused to sentence appellant pursuant to Proposition 36 because it concluded appellant "fell outside the realm." The appellate court here reversed. The one "non-drug event" which might have disqualified appellant was a drunk driving conviction which was neither admitted nor proved as a probation violation. It is the prosecutor’s responsibility to create a record in which the disqualifying violation is proved or admitted, or the…

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Name: People v. Superior Court (Jefferson)
Case #: E030590
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/09/2002
Subsequent History: None

Jefferson was charged with possession of methamphetamine with two prior robbery strikes in 1984 and 1985. He entered into a negotiated plea agreement and was sentenced to a drug treatment program under Proposition 36. The prosecutor appealed, arguing that the five-year washout period did not apply, in that appellant went to prison in 1999 for another drug offense. The appellate court here issued an order setting aside the probation grant. Under Penal Code section 1210.1, subdivision (b)(1), appellant would have had to be free from prison custody since October, 1996, in order to be eligible for…

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Name: People v. Mendoza
Case #: S067104
Court: CA Supreme Court
District CalSup
Opinion Date: 07/31/2000
Subsequent History: Rehearing denied 9/13/00

Mendoza and his codefendant, Valle, were charged with murder committed during the course of a robbery, in violation of Penal Code section 189. The defendants were also charged with the robbery, and a special circumstance that the murder was committed during the course of a robbery. The separate juries convicted on the murder and robbery, and found the special circumstances to be true. Neither jury's verdict specified the degree of murder, though they had been instructed only on first degree felony-murder. Penal Code section 1157 provides that where a defendant is convicted of a crime which…

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Name: People v. Floyd
Case #: F037295
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/01/2002
Subsequent History: As Mod. on denial of rehrg (change in judg) 2/15/02., Rev. granted 5/1/02

Proposition 36 does not apply to someone who was both convicted and sentenced before its effective date of July 1, 2001, but whose appeal was pending on July 1, 2001.…

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Name: In re Varnell
Case #: B153849
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 01/15/2002
Subsequent History: Rev. granted 5/1/02.

Prop 36 case. The trial court may use Penal Code section 1385 to dismiss a disqualifying prior strike allegation and thereby make a defendant eligible for sentencing under Proposition 36. Since the trial court here found that appellant’s minor record and nonviolent offense warranted dismissal of the prior strike, but erroneously found that it lacked the power to do so, the judgment was vacated and the case was remanded for reconsideration of the…

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Name: People v. Legault
Case #: E028707
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 01/11/2002
Subsequent History: Rev. denied 4/10/02.

Prop 36 case. Appellant pleaded no contest to possession of cocaine in return for probation and 90 days in the county jail. He executed a Cruz waiver with the understanding that he could be sentenced to the maximum term for failing to appear or committing a new offense. Prior to his sentencing, he was arrested for possession of paraphernalia, a violation of the Cruz waiver. On November 7, 2000, the voters passed Proposition 36. Appellant admitted the Cruz violation and was sentenced to three years in state prison on November 27, 2000. Here, the…

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