California Proposition 36: How it Works

Proposition 36...more commonly referred to as "Prop 36"...is a criminal sentencing initiative that was passed by California voters on November 7, 2000.  Prop 36 requires that eligible non-violent drug offenders serve their time in a drug treatment program instead of in jail or prison. Prop 36 is also known as the "Substance Abuse and Crime Prevention Act of 2000."

The laws regulating who may be eligible for this alternative sentencing program are technical and complex.  We're here to explain it in a simple and straightforward way.

Our California drug crimes defense attorneys1 know the most effective ways to keep you out of jail by enrolling you in a Prop 36 drug diversion program instead.  In this article, we explain how by addressing the following:

1. What is California's Proposition 36?

1.1. How Prop 36 defines "nonviolent drug offenses"

1.2. Additional crimes exempted from Prop 36

1.3. Additional restrictions on Proposition 36 eligibility

1.4 Can I fight my case and still do Prop 36 if I lose?

2. Probation in a California Prop 36 Case

2.1. Violations of probation or parole

2.1.1. If you are unamenable to treatment

2.1.2. If you violate the terms of your probation
or parole

3. Successful Completion of Proposition 36 Drug Treatment
4. Alternative California Drug Diversion Programs

4.1. California Penal Code 1000 PC deferred entry of judgment

4.2. California drug courts

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Drug Crimes; Health and Safety Code 11350 HS Personal Possession of a Controlled Substance; Health and Safety 11357 HS Possession of Less than One Ounce of Marijuana; Health and Safety Code 11351 HS Possessing or Purchasing Controlled Substances for Sale; Health and Safety Code 11358 HS Cultivating Marijuana; Health and Safety Code 11359 HS Possessing Marijuana for Sale; Health and Safety Code 11352 HS California's Law Against Transporting or Selling Controlled Substances; Health and Safety Code 11360 HS California's Law Against Transporting or Selling Marijuana; Health and Safety Code 11550 HS California's Under the Influence Law; Vehicle Code 23152(a) Driving Under the Influence of Drugs; California Drug Laws re Cocaine; California Drug Laws Involving Heroin; California Drug Laws Involving GHB; California Drug Laws Involving Ketamine ("Special K"); California Drug Laws Involving Phencyclidine ("PCP"); Possession, Sale & Transportation of Methamphetamines; California Drug Laws re Possession or Sale of Ecstasy; California Marijuana Laws; California Drug Laws Involving Codeine; California Drug Laws Involving Hydrocodone ("Vicodin"); California Vehicle Code 20002 VC Misdemeanor Hit and Run Involving Property Damage; Health and Safety Code 11364 HS Possession of Drug Paraphernalia; California's Three Strikes Law; Probation Violation Hearings; Parole Revocation Hearings; California Expungement Law; Penal Code 1000 PC Deferred Entry of Judgment ("DEJ"); and California Drug Courts.

1. What is California's Proposition 36?

Proposition 36...which is defined in Penal Code sections 1210-1210.1 PC and 3063.1 (as it relates to people on parole)...is one type of California drug diversion.  "Drug diversion" is the practice of allowing eligible defendants to have their criminal charges or conviction dismissed if they successfully complete a court-approved drug treatment program.

A court-approved "drug treatment program" refers to a treatment program that includes one or more of the following:

  • drug education,
  • outpatient services or residential treatment,
  • detoxification services or narcotic replacement therapy, or
  • aftercare services.

It does not refer to the drug rehabilitation programs that are offered in prisons or jail facilities.2

Specifically, Prop 36 changed California law to require that first and second-time defendants who have been convicted of nonviolent drug possession offenses receive up to twelve (12) months of substance abuse treatment instead of time in jail or prison.  This period may be extended by up to two (2) more six (6)-month periods if necessary.3

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In the first few years of the program (which began after the Proposition 36 was passed in 2000), the vast majority of participants in Prop 36 drug treatment attended outpatient programs. Only around 10% went to residential programs, and very few went to drug-based detox programs like methadone clinics.4

Proposition 36 additionally applies to many parolees who violate their parole by committing a nonviolent drug possession offense. In many cases, a parolee who commits a nonviolent drug possession offense while on parole...or violates a drug-related condition of parole...will not be returned to prison but will instead be required to participate in a drug treatment program.5

But what are "nonviolent drug possession offenses"?

1.1. How Prop 36 defines "nonviolent drug possession offenses"

"Nonviolent drug possession offenses" include unlawfully

  1. using and/or being being under the influence of any of the drugs listed in the United States "Controlled Substances Act", and/or
  2. possessing or transporting any of these narcotics for personal use.6

These drugs include (but are by no means limited to):

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Qualifying nonviolent drug possession offenses typically include (but are not limited to):

It therefore follows that convictions for California sales- and manufacturing-related drug crimes do not allow a defendant to participate in California Prop 36 drug treatment because they are not considered nonviolent drug possession offenses.11 Offenses that "don't count" for Proposition 36 purposes include violations of laws such as

Example: Let's return to Chloe from our previous example. Let's say that after catching her with a marijuana joint, the police search her apartment and find large quantities of marijuana-more than she can use personally. So she is charged with possession of marijuana for sale. Because this is not a nonviolent drug possession offense, Chloe will not be eligible for Proposition 36 drug treatment in lieu of a normal sentence.
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Convictions involving possession of drugs while incarcerated are also exempted from Prop 36 eligibility.17

1.2. Additional crimes exempted from Prop 36

Courts have additionally held that the following crimes do not qualify for California Proposition 36 sentencing, as their activities go beyond simple "possession, use or personal transportation":

  • Health and Safety Code 11358 -HS California's law against cultivating marijuana (even if the cultivation is for one's own use),18
  • Health and Safety Code 11370.1(a) - California's law against possessing a controlled substance while armed with a loaded, operable firearm,19 and
  • Health and Safety Code 11368 HS - California's law against forging or presenting a forged prescription to obtain drugs20.

1.3. Additional restrictions on eligibility

Even if your offense qualifies for Prop 36 drug treatment, you must qualify as well.  Specifically, there are five factors that could disqualify you from Prop 36 eligibility.

1) You have prior "strike" convictions.

If you have previously been convicted of one or more violent or
serious felonies <...that is, crimes that qualify as "strikes" under California's three strikes law ...you are not eligible for sentencing under Prop 36 unless the qualifying nonviolent drug possession offense occurred at least five (5) years after you

a) were last released from prison, and
b) were convicted of either a felony other than a nonviolent drug possession offense or a misdemeanor that involved physical injury or the threat of physical injury to another person.21
Example: Dan is convicted of robbery -a strike under California Three Strikes Law-in 2002. He goes to prison and is released in 2006. In 2010, he gets arrested for possession of cocaine. Because he picked up the new drug case less than 5 years after his release from prison on the strike, he is ineligible for Proposition 36.
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If you are ineligible under this section, the judge does not have the authority to dismiss the offense/offenses that render you ineligible.22

On a separate note, because a juvenile adjudication is not legally considered a criminal "conviction", any cases resolved by the juvenile court... even if they are considered serious or violent felonies...will not prevent you from being eligible for Prop 36 sentencing.23

2) You were simultaneously convicted of a non-drug-related misdemeanor or felony.

If...in addition to the qualifying nonviolent drug possession offense...you were convicted in the same proceeding of either

a) a misdemeanor "not related to the use of drugs", or
b) a felony,

you are ineligible for California Proposition 36 sentencing.24 The phrase "misdemeanor not related to the use of drugs" requires a bit of explanation.  It refers to a misdemeanor that does not involve

a) the simple possession or use of drugs or drug paraphernalia,
b) being present where drugs are used,
c) failing to register as a drug offender, or
d) any activity similar to a simple use or personal possession offense.25

For example, California courts have held that Vehicle Code 23152(a), California's "driving under the influence of drugs" (DUID) law, is a "misdemeanor not related to the use of drugs"-and so will disqualify you from Prop 36 sentencing.  Courts have reasoned that because an offense like DUID necessarily involves danger to others, it is more akin to a drug "sales" offense...and therefore goes beyond simply being under the influence.26

This means that if you are convicted of a nonviolent drug possession offense ... and either a misdemeanor not related to the use of drugs or a felony...you are not eligible to participate in Prop 36 sentencing.27

However, unlike the rule involving prior "three strikes cases", a judge does have the discretion to dismiss this type of additional charge so that you are eligible to receive a Prop 36 sentence.28

3) You were armed with a firearm or other deadly weapon at the time you committed your nonviolent drug possession offense.29

4) You refuse drug treatment as a condition of probation.30

OR

5) You have previously participated in two other California Proposition 36 programs.

If you have two separate convictions for nonviolent drug possession offenses, and

a) were sentenced under Prop 36 for both of those offenses, and
b) the judge believes that you are unamenable to (that is, unable to benefit from) any further drug treatment,

you are not only ineligible to participate in another round of Prop 36 sentencing but will also be required to serve a minimum of thirty (30) days in jail.31

1.4 Can I fight my case and still do Prop 36 if I lose?

Yes.  The nice thing about Proposition 36 is that if you qualify for it, you can do the program even if you get convicted at trial. That is, you can take the drug case all the way to trial and shoot for an acquittal. If you get found "not guilty," the case is over. But even if you get convicted, you can still do Prop 36 rather than going to jail.

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2. Probation in a California Prop 36 Case

In order to receive a Prop 36 sentence, you must

  1. plead guilty or nolo contendere ("no contest") to a nonviolent drug possession charge,
  2. be convicted of such an offense following a judge ("bench") or California jury trial, or
  3. be a parolee (that is, a person who has been released from the California state prison on parole) and...while on parole...either commit a nonviolent drug possession offense or violate a drug-related term of your parole.32

The judge then places you on probation...or modifies your parole...with a requirement that you successfully complete a drug treatment program (which includes drug testing).  The court may...but is not required to...impose additional terms of probation or parole, such as participation in

  • vocational training,
  • family counseling, and/or
  • community service.

However, the court is prohibited from imposing any period of incarceration as a condition of probation33 ...that is, unless you violate the terms of your probation.

2.1. Violations of probation or parole

If you violate the terms of your probation or parole, there are a number of different consequences that the judge may impose, depending on the exact violation.

2.1.1. If you are unamenable to treatment

If your drug treatment provider believes that you are unable to benefit from any form of drug treatment, the probation department or parole board may move to revoke your probation or parole.  If...during your California probation violation hearing or parole revocation hearing... the judge agrees, the court may revoke your
probation or parole and sentence you to a period of incarceration based on the convicted offense.34

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In order to determine whether you are amenable to treatment, the judge may consider issues such as whether you have

  1. committed a serious violation of the rules at the drug treatment facility,
  2. repeatedly violated the program rules in a way that inhibits your ability to function in the program, or
  3. continually refused to participate in the program (or have asked to be removed from the program).35

2.1.2. If you violate the terms of your probation or parole

If you violate the terms of your probation or parole, the court must still allow you to participate in Prop 36 sentencing under most conditions.

With respect to offenses other than nonviolent drug possession offenses...

If you are on probation or parole and either

  1. commit an offense that is not a nonviolent drug possession offense, or
  2. violate a non-drug-related condition of your probation/parole,

the court may incarcerate you for up to thirty (30) days while it determines whether or not to reinstate your terms.  If it chooses to reinstate your probation/parole, it may modify your treatment plan as well as any other terms it deems necessary.  The judge may also choose to impose a maximum 30-day jail sentence as a penalty designed to encourage your future compliance with drug treatment.36

If the court decides not to reinstate your Prop 36 sentencing, it will simply sentence you on the underlying offense(s).

Example: Kurt is on probation and in a Prop 36 drug treatment program after a conviction for being under the influence of drugs. While on probation, he hits an unoccupied car with his car and flees the scene. This leads to him being arrested for California misdemeanor hit and run law.

Because Kurt has committed an offense that is not a nonviolent drug possession offense, a judge will take up his case and decide whether to alter the terms of his probation. While the judge is deciding, Kurt may be incarcerated for up to thirty (30) days. And if the judge decides not to reinstate his Prop 36 sentencing, Kurt may have to serve time for his conviction for being under the influence...in addition to serving any sentence he receives for the hit and run.
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And with respect to nonviolent drug related possession offenses...

If you violate probation or parole by

  1. committing a nonviolent drug possession offense,
  2. committing a misdemeanor related either to using drugs or to possessing drugs or drug paraphernalia,
  3. being in an area where drugs are used,
  4. failing to register as a drug offender, or
  5. violating a drug-related condition of probation (which includes conditions regarding drug treatment, employment, vocational training, and counseling),

the court will conduct a hearing to determine whether it should revoke probation or parole.  The court must revoke probation or parole if the state proves by a preponderance of the evidence (that is, that it is more likely than not) that you are a danger to society.37

If the court reinstates your probation, it may intensify the terms and add up to forty-eight (48) hours of continuous jail time to further encourage your compliance.  And if the violation was based on recent drug use, the judge may order you to enter a residential treatment facility or...if necessary...a jail that has a "detox" facility.38

The same procedures apply to a defendant who has suffered a second violation.  However, with a second violation, the court will revoke probation or parole if the state proves that the defendant is either

  1. a danger to society, or
  2. unamenable to treatment.39

And if the court does reinstate probation, it may require a maximum 120-day jail sentence to encourage compliance.40 If the court finds that you violated your parole, you will no longer be eligible for Prop 36 sentencing and will be incarcerated.41

A third or subsequent probation violation also triggers a hearing.  However, under these circumstances, the court will render you ineligible to continue under Prop 36 unless it believes that

  1. you are not a danger to society, and
  2. you would benefit from further treatment.42
3. Successful Completion of Drug Treatment

After you have successfully completed your California Prop 36 drug treatment, you may petition the court to dismiss your conviction.  As long as the judge agrees that you have successfully completed treatment...and have substantially complied with all terms of your probation...he/she must set aside and dismiss your case.43

The phrase "successful completion of drug treatment" means that you have completed the course of drug treatment that was recommended by the treatment provider and ordered by the court.  It additionally means that there is reasonable cause to believe that you will no longer abuse controlled substances.44

This may sound easy...but in fact, in the first few years of Prop 36's existence, only about one-third of people who entered treatment succeeded in completing it.45

Once your charge has been expunged in accordance with California's expungement laws, you are released from all penalties and disabilities that resulted from the offense, except that you may not own or possess a firearm capable of being concealed on your person (that is, a concealed weapon).46

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And...with very few exceptions...once your case has been dismissed, you may legally state that you have never been arrested or convicted for the offense that triggered your treatment.  These exceptions provide that you must still disclose the arrest and conviction:

  • in any peace officer application or in response to any law enforcement inquiry,
  • in any questionnaire or application for public office,
  • when applying to a state or local license agency that contracts with the California State Lottery, and
  • with respect to any issues regarding serving on a jury.47
4. Alternative California Drug Diversion Programs

In addition to Proposition 36, there are a couple of other noteworthy California drug diversion programs...Penal Code 1000 PC and drug court.

4.1. California Penal Code 1000 PC deferred entry of judgment

Penal Code 1000 PC, California's "deferred entry of judgment" (DEJ) program, functions in much the same way as does Prop 36.  It, too, offers nonviolent drug possession offenders the opportunity to have their charges dismissed upon the successful completion of a drug treatment program.48

However, there are two major differences between the two treatment options.

The first difference deals with the length and requirements of the two programs.  Prop 36 is a maximum two-year program, whereas Penal Code 1000 PC DEJ is an 18-month to three-year program.49 Proposition 36 requires the judge to sentence you to formal probation while you participate in treatment . . . but you are not sentenced to probation when you participate in Penal Code 1000 PC drug diversion.50

The second difference has to do with judicial discretion.  Under Prop 36, eligible defendants must receive drug treatment in lieu of incarceration.  However, under deferred entry of judgment, the judge has the discretion to render you unsuitable for the program, forcing you to either plead guilty to the charge, fight your case or pursue your Proposition 36 eligibility.51

And because Prop 36 requires a probation sentence, the judge may impose additional restrictions, such as a condition that you are required to submit to a search / seizure of your person, property, etc. at the request of a law enforcement officer.  And...at the end of the program...if the judge does not believe that you substantially complied with all of the conditions of probation, he/she may not grant your petition to expunge your charge.52

In contrast, Penal Code 1000 PC does not allow a judge to impose any additional restrictions on participation.  And a defendant who successfully completes DEJ is entitled to an automatic dismissal of the case.53

Example: Dick and Jane are both charged with nonviolent drug possession offenses. The judge who hears their cases decides that Jane is eligible for drug treatment under the DEJ program, but that Dick is not. So Dick pursues the Prop 36 route and enters drug treatment under that program.

Under the DEJ program, Jane is going to be required to participate in drug treatment for 2 years. Dick, in the Prop 36 program, will only have to participate for 1 year. But at the end of her 2 years, Jane is entitled to an automatic dismissal of the charges against her. Dick, on the other hand, will have to face the judge again to show that he substantially complied with all conditions of probation, and that there is reasonable cause to believe he will not use drugs again.

4.2. California drug court

California drug courts are another type of drug diversion program.  Just like Prop 36 and DEJ, successful completion of your drug treatment program can result in a dismissal of your charges.54

The major benefit of attending drug court is that this diversion program allows you to participate in drug treatment and counseling without first pleading guilty or no contest to the charges.55

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Drug treatment through California drug court may include (but is not limited to):

  • a graduated system of penalties and rewards,
  • therapy,
  • drug testing,
  • close court monitoring and supervision,
  • educational or vocational counseling, and
  • any other conditions that are agreed upon by the judge, your attorney and the prosecutor.56
A final note...

As Sacramento criminal defense attorney Neil Shouse57 explains,

"While there are many advantages to participating in a drug diversion program, it is critical that you discuss your case with a skilled California drug crimes defense lawyer before choosing to enter a program.  It is important to determine which option is best suited to your case and to your needs and whether you should voluntarily enter diversion or first try to fight your case."
Call us for help...

If you or loved one is charged with drugs and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additional Resources:

California Department of Alcohol and Drug Programs page on Prop 36 - discusses research, legislation and policy issues related to Proposition 36.

California Attorney General's Office Summary of Prop 36 case law - California Attorney General's discussion of cases, rules and statutes addressing Prop 36.

Legal References:

1 Our California drug crimes defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2 California Penal Code 1210 PC -- Definitions of terms included in Proposition 36.  ("As used in Sections 1210.1 and 3063.1 of this code, and Division 10.8 (commencing with Section 11999.4) of the Health and Safety Code, the following definitions apply: (a) The term "nonviolent drug possession offense" means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term "nonviolent drug possession offense" does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8. (b) The term "drug treatment program" or "drug treatment" means a state licensed or certified community drug treatment program, which may include one or more of the following: drug education, outpatient services, narcotic replacement therapy, residential treatment, detoxification services, and aftercare services. The term "drug treatment program" or "drug treatment" includes a drug treatment program operated under the direction of the Veterans Health Administration of the Department of Veterans Affairs or a program specified in Section 8001. That type of program shall be eligible to provide drug treatment services without regard to the licensing or certification provisions required by this subdivision. The term "drug treatment program" or "drug treatment" does not include drug treatment programs offered in a prison or jail facility. (c) The term "successful completion of treatment" means that a defendant who has had drug treatment imposed as a condition of probation has completed the prescribed course of drug treatment as recommended by the treatment provider and ordered by the court and, as a result, there is reasonable cause to believe that the defendant will not abuse controlled substances in the future. Completion of treatment shall not require cessation of narcotic replacement therapy. (d) 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 (1).")

3 California Penal Code 1210.1 PC (also known as Proposition 36) -- Possession of Controlled Substances; Probation; Exceptions, subdivision (d)(3).  ("(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense [either through a guilty or nolo contendere "no contest" plea or based on a guilty verdict in a California jury trial] shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose. Probation shall be imposed by suspending the imposition of sentence. No person shall be denied the opportunity to benefit from the provisions of the Substance Abuse and Crime Prevention Act of 2000 based solely upon evidence of a co-occurring psychiatric or developmental disorder. To the greatest extent possible, any person who is convicted of, and placed on probation pursuant to this section for a nonviolent drug possession offense shall be monitored by the court through the use of a dedicated court calendar and the incorporation of a collaborative court model of oversight that includes close collaboration with treatment providers and probation, drug testing commensurate with treatment needs, and supervision of progress through review hearings. In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program. (b) Subdivision (a) shall not apply to any of the following: (1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person. (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. (3) Any defendant who, while armed with a deadly weapon, with the intent to use the same as a deadly weapon, unlawfully possesses or is under the influence of any controlled substance identified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Any defendant who refuses drug treatment as a condition of probation. (5) Any defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210. Notwithstanding any other provision of law, the trial court shall sentence that defendant to 30 days in jail. (c)(1) Any defendant who has previously been convicted of at least three non-drug-related felonies for which the defendant has served three separate prison terms within the meaning of subdivision (b) of Section 667.5 shall be presumed eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) where the court, pursuant to the motion of the prosecutor or its own motion, finds that the defendant poses a present danger to the safety of others and would not benefit from a drug treatment program. The court shall, on the record, state its findings, the reasons for those findings. (2) Any defendant who has previously been convicted of a misdemeanor or felony at least five times within the prior 30 months shall be presumed to be eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) if the court, pursuant to the motion of the prosecutor, or on its own motion, finds that the defendant poses a present danger to the safety of others or would not benefit from a drug treatment program. The court shall, on the record, state its findings and the reasons for those findings. (d) Within seven days of an order imposing probation under subdivision (a), the probation department shall notify the drug treatment provider designated to provide drug treatment under subdivision (a). Within 30 days of receiving that notice, the treatment provider shall prepare a treatment plan and forward it to the probation department for distribution to the court and counsel. The treatment provider shall provide to the probation department standardized treatment progress reports, with minimum data elements as determined by the department, including all drug testing results. At a minimum, the reports shall be provided to the court every 90 days, or more frequently, as the court directs. (1) If at any point during the course of drug treatment the treatment provider notifies the probation department and the court that the defendant is unamenable to the drug treatment being provided, but may be amenable to other drug treatments or related programs, the probation department may move the court to modify the terms of probation, or on its own motion, the court may modify the terms of probation after a hearing to ensure that the defendant receives the alternative drug treatment or program. (2) If at any point during the course of drug treatment the treatment provider notifies the probation department and the court that the defendant is unamenable to the drug treatment provided and all other forms of drug treatment programs pursuant to subdivision (b) of Section 1210, the probation department may move to revoke probation. At the revocation hearing, if it is proved that the defendant is unamenable to all drug treatment programs pursuant to subdivision (b) of Section 1210, the court may revoke probation. (3) Drug treatment services provided by subdivision (a) as a required condition of probation may not exceed 12 months, unless the court makes a finding supported by the record, that the continuation of treatment services beyond 12 months is necessary for drug treatment to be successful. If such a finding is made, the court may order up to two six-month extensions of treatment services. The provision of treatment services under the Substance Abuse and Crime Prevention Act of 2000 shall not exceed 24 months. (e)(1) At any time after completion of drug treatment and the terms of probation, the court shall conduct a hearing, and if the court finds that the defendant successfully completed drug treatment, and substantially complied with the conditions of probation, including refraining from the use of drugs after the completion of treatment, the conviction on which the probation was based shall be set aside and the court shall dismiss the indictment, complaint, or information against the defendant. In addition, except as provided in paragraphs (2) and (3), both the arrest and the conviction shall be deemed never to have occurred. The defendant may additionally petition the court for a dismissal of charges at any time after completion of the prescribed course of drug treatment. Except as provided in paragraph (2) or (3), the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. (2) Dismissal of an indictment, complaint, or information pursuant to paragraph (1) does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person [that is, a concealed weapon] or prevent his or her conviction under Section 29800. (3) Except as provided below, after an indictment, complaint, or information is dismissed pursuant to paragraph (1), the defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or convicted for the offense. Except as provided below, a record pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under this section may not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. Regardless of his or her successful completion of drug treatment, the arrest and conviction on which the probation was based may be recorded by the Department of Justice and disclosed in response to any peace officer application request or any law enforcement inquiry. Dismissal of an information, complaint, or indictment under this section does not relieve a defendant of the obligation to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer as defined in Section 830, for licensure by any state or local agency, for contracting with the California State Lottery, or for purposes of serving on a jury. (f)(1) If probation is revoked pursuant to the provisions of this subdivision, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of this section. The court may modify or revoke probation if the alleged violation is proved. (2) If a defendant receives probation under subdivision (a), and violates that probation either by committing an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section. If the court reinstates the defendant on probation, the court may modify the treatment plan and any other terms of probation, and continue the defendant in a treatment program under the Substance Abuse and Crime Prevention Act of 2000. If the court reinstates the defendant on probation, the court may, after receiving input from the treatment provider and probation, if available, intensify or alter the treatment plan under subdivision (a), and impose sanctions, including jail sanctions not exceeding 30 days, a tool to enhance treatment compliance. (3)(A) If a defendant receives probation under subdivision (a), and violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may intensify or alter the drug treatment plan and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 48 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (B) If a defendant receives probation under subdivision (a), and for the second time violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant (i) has committed a serious violation of rules at the drug treatment program, (ii) has repeatedly committed violations of program rules that inhibit the defendant's ability to function in the program, or (iii) has continually refused to participate in the program or asked to be removed from the program. If the court does not revoke probation, it may intensify or alter the drug treatment plan, and may, in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, impose sanctions including jail sanctions that may not exceed 120 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in the facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. Detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (C) If a defendant receives probation under subdivision (a), and for the third or subsequent time violates that probation either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a) unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions as the court deems appropriate. (D) If a defendant on probation at the effective date of this act for a nonviolent drug possession offense violates that probation either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may modify or alter the treatment plan, and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 48 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (E) If a defendant on probation at the effective date of this act for a nonviolent drug possession offense violates that probation a second time either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug-related condition of probation, and the state moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or that the defendant is unamenable to drug treatment. If the court does not revoke probation, it may modify or alter the treatment plan, and in addition, if the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 120 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs. If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy. (F) If a defendant on probation at the effective date of this act for a nonviolent drug offense violates that probation a third or subsequent time either by committing a nonviolent drug possession offense, or by violating a drug-related condition of probation, and the state moves for a third or subsequent time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subdivision (a), unless the court determines that the defendant is not a danger to the community and would benefit from further treatment under subdivision (a). The court may then either intensify or alter the treatment plan under subdivision (a) or transfer the defendant to a highly structured drug court. If the court continues the defendant in treatment under subdivision (a), or drug court, the court may impose appropriate sanctions including jail sanctions. (g) The term "drug-related condition of probation" shall include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.")

4 UCLA Integrated Substance Abuse Programs, Evaluation of the Substance Abuse and Crime Prevention Act: Final Report, Apr. 13, 2007, at 3.

5 California Penal Code 3063.1 - Possession of Controlled Substances; Parole; Exceptions (also part of Prop 36). ("(a) Notwithstanding any other provision of law, and except as provided in subdivision (d), parole may not be suspended or revoked for commission of a nonviolent drug possession offense or for violating any drug-related condition of parole. As an additional condition of parole for all such offenses or violations, the Parole Authority shall require participation in and completion of an appropriate drug treatment program. Vocational training, family counseling and literacy training may be imposed as additional parole conditions. The Parole Authority may require any person on parole who commits a nonviolent drug possession offense or violates any drug-related condition of parole, and who is reasonably able to do so, to contribute to the cost of his or her own placement in a drug treatment program.")

6 See California Penal Code 1210 PC -- Definitions of terms included in Proposition 36, subdivision "a", endnote 2, above.

7U.S. Drug Enforcement Administration - Controlled Substances Schedule List.

8 Health and Safety Code 11377 HS California's law against personal possession of a controlled substance.  ("(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison. (b)(1) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (f) of Section 11056, and who has not previously been convicted of a violation involving a controlled substance specified in subdivision (f) of Section 11056, is guilty of a misdemeanor. (2) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (g) of Section 11056 is guilty of a misdemeanor. (3) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (7) or (8) of subdivision (d) of Section 11055 is guilty of a misdemeanor. (4) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (8) of subdivision (f) of Section 11057 is guilty of a misdemeanor. (c) In addition to any fine assessed under subdivision (b), the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.")

See also Health and Safety Code 11350 HS California's law against personal possession of controlled substances.  ("(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in the county jail for not more than one year or in the state prison. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.")

9 Health and Safety Code 11357 HS California's law against possessing less than one ounce of marijuana.  ("(a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison. (b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). (c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. (d) Except as authorized by law, every person 18 years of age or over who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500), or by imprisonment in the county jail for a period of not more than 10 days, or both. (e) Except as authorized by law, every person under the age of 18 who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be subject to the following dispositions: (1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed. (2) A fine of not more than five hundred dollars ($500), or commitment to a juvenile hall, ranch, camp, forestry camp, or secure juvenile home for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed.")

10 Health and Safety Code 11550 HS California's law against being under the influence of a controlled substance.  ("(a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail. The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. (b) Any person who (1) is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and (2) refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a) that is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available. For the purpose of this section, a drug rehabilitation program shall not be considered reasonably available unless the person is required to pay no more than the court determines that he or she is reasonably able to pay, in order to participate in the program. (c) The court may, when it would be in the interest of justice, permit any person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds. (d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (e) Notwithstanding subdivisions (a) and (b) or any other provision of law, any person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison. As used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle. (f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years. (g) Nothing in this section prevents deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program.")

11 See California Penal Code 1210 PC -- Definitions of terms included in Proposition 36, subdivision (a), endnote2, above.

12 Health and Safety Code 11351 HS California's law against possession or purchase of a controlled substance for sale; punishment.  ("Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years.")

13 Health and Safety Code 11352 HS California's law against transporting or selling a controlled substance; punishment.  ("(a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

14 Health and Safety Code 11360 HS California's law against transporting or selling marijuana.  ("(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years. (b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.")

15 Health and Safety Code 11359 HS California's law against possessing marijuana for sale.  ("Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison.")

16 Health and Safety Code 11378 HS California's law against possessing or purchasing controlled substances for sale. ("Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment in the state prison.")

See also Health and Safety Code 11379 HS California's law against transporting or selling controlled substances.  ("(a) Except as otherwise provided in subdivision (b) and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054 except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d) or (e), except paragraph (3) of subdivision (e), or specified in subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of two, three, or four years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

17 See California Penal Code 1210 PC -- Definitions of terms included in Proposition 36, subdivision (a), endnote2, above.

18 This offense does not count for Prop 36 even where you cultivate marijuana for your own use.  See People v. Sharp (2003) 112 Cal.App.4th 1336, 1338.  ("At issue in this case is whether a defendant convicted of cultivating marijuana (Health & Saf.Code, � 11358) is eligible for drug treatment rather than incarceration under Proposition 36 (Pen.Code, � 1210 et seq.) if the cultivation was for personal use. We agree with the trial court that cultivation of marijuana does not meet the statutory definition of a "nonviolent drug possession offense" because it is not "possession, use, or transportation for personal use" or "being under the influence" of a controlled substance. (Pen.Code, � 1210, subd. (a).) Rather, cultivation falls within the excluded offenses of "possession for sale, production, or manufacturing." ( Ibid.) We affirm the judgment.")

19 In re Ogea (2004) 121 Cal.App.4th 974, 987.  ("The Legislature determined those in possession of a controlled substance while armed with a loaded, operable firearm pose a serious threat to society and to law enforcement and, in subdivision (b) of Health and Safety Code section 11370.1, expressly denied them the benefits of Penal Code section 1000 et seq. Granting the benefits of Proposition 36 to those convicted of violating Health and Safety Code section 11370.1 would defeat the Legislature's purpose for enacting that statute, would amend Health and Safety Code section 11370.1 by nullifying subdivision (b), and would contradict assurances given the voters that Proposition 36 would be strictly limited and would change no other criminal law. Accordingly, we resolve any ambiguity in Proposition 36 by construing the term "nonviolent drug possession offense" under Penal Code section 1210, subdivision (a) to exclude violations of Health and Safety Code section 11370.1.")

20 People v. Wheeler (2005) 127 Cal.App.4th 873, 879.  ("Moreover, nothing in section 11368 establishes the section is limited to offenses committed with the intent to obtain narcotics for personal use. Therefore, section 11368 also does not facially meet the definition of a "nonviolent drug possession offense" for purposes of Proposition 36 because Penal Code section 1210, subdivision (a), expressly limits the term to "personal use," "possession for personal use," "transportation for personal use," or personally "being under the influence." Defendant argues his specific section 11368 offense comes within the broad range of offenses encompassed by Proposition 36 because, in fact, he committed the offense in order to obtain Vicodin for his personal use and "it is not the means by which defendant obtains the controlled substance that controls under Proposition 36, but it is the purpose for which he possesses it." FN3 Although we agree Proposition 36 does not distinguish between offenses based on the means by which the drugs are obtained, we are not persuaded this is pertinent to whether defendant's section 11368 offense comes within Proposition 36...[and at 880] The crime of prescription forgery within the portions of section 11368 at issue is not simple drug possession. Although a person could use a forged prescription, as defendant apparently did, as a method for trying to obtain narcotics for personal use, as we pointed out before, the offense is not so limited. In addition, even when the drugs are for personal use, section 11368 is directed at a greater evil than possession and personal use of the obtained drugs. It is primarily directed at forgery of the indicia of a powerful authority solely reserved to statutorily defined "practitioners."...Far more is implicated than just an offender's personal involvement with drugs. (See People v. Canty, supra, 32 Cal.4th at p. 1279, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) Even though section 11368 is not necessarily "commercial in nature" ( People v. Ferrando, supra, 115 Cal.App.4th at p. 920, 9 Cal.Rptr.3d 670) like the "sale, production, or manufacturing" offenses that are expressly excluded by Penal Code section 1210, subdivision (a), neither is it a simple drug possession or drug use offense.")

21 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (b)(1), endnote 3, above.

22 In re Varnell (2003) 30 Cal.4th 1132, 1137-1138.  ("Petitioner concedes that he is statutorily ineligible for the benefits of Proposition 36. He was convicted of assault with a deadly weapon in 1995 and was not released from prison until 1998, less than three years before he committed his current drug offense. But the Court of Appeal, reasoning that he could become eligible if the trial court were to disregard these historical facts, held that section 1385 could give him what the electorate did not. We disagree with the Court of Appeal. "The only action that may be dismissed under Penal Code section 1385, subdivision (a), is a criminal action or a part thereof." ( People v. Hernandez, supra, 22 Cal.4th at p. 524, italics added.) We have consistently interpreted "action" to mean the "individual charges and allegations in a criminal action" ( id. at pp. 521-522, 523; People v. Burke, supra, 47 Cal.2d at p. 50) and have never extended it to include mere sentencing factors...A ruling that section 1385 could be used to disregard sentencing factors, which similarly are not included as offenses or allegations in an accusatory pleading, would be unprecedented.  It also would be inconsistent with our description of the effect of a section 1385 dismissal. As we have repeatedly emphasized, dismissal of a prior conviction allegation under section 1385 "is not the equivalent of a determination that defendant did not in fact suffer the conviction." ( People v. Burke, supra, 47 Cal.2d at p. 51; People v. Garcia (1999) 20 Cal.4th 490, 496 [85 Cal.Rptr.2d 280, 976 P.2d 831].) "When a court strikes prior felony conviction allegations in this way, it ' "does not wipe out such prior convictions or prevent them from being considered in connection with later convictions." ' " ( People v. Superior Court ( Romero), supra, 13 Cal.4th at p. 508, quoting People v. Burke, supra, 47 Cal.2d at p. 51.) Thus, while a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use.FN4 Hence, the trial court's dismissal of the "strike" allegation in this case did not wipe out the fact of the prior conviction and the resulting prison term that made petitioner ineligible under subdivision (b)(1) of section 1210.1.")

23 People v. Westbrook (2002) 100 Cal.App.4th 378, 383-384.  ("For purposes of determining the drug rehabilitation program treatment right in Penal Code section 1210 et seq., a juvenile court adjudication, as occurred in this case is not a disqualifying factor. A juvenile delinquency adjudication and disposition in a prior robbery case does not result in the accused's having previously been "convicted" of a serious felony for purposes of Penal Code section 1210.1, subdivision (b)(1). Our decision in this regard is based upon the explicit language used by the voters in Penal Code section 1210.1, subdivision (b)(1). In order for a defendant to be excluded from drug treatment, Penal Code section 1210.1, subdivision (b)(1) requires the defendant in a nonviolent drug case to previously have been "convicted" of a serious or violent felony. Welfare and Institutions Code section 203 explicitly states, "An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding."")

24 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (b)(2), endnote 3, above.

25 See California Penal Code 1210 PC -- Definitions of terms included in Proposition 36, subdivision (d), endnote 2, above.

26 People v. Canty (2004) 32 Cal.4th 1266, 1278-1279.  ("By contrast, for a defendant to be guilty of driving while under the influence of drugs in violation of Vehicle Code section 23152, subdivision (a), " 'the ... drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.]' " ( People v. Enriquez, supra, 42 Cal.App.4th at p. 665, 49 Cal.Rptr.2d 710 (italics in original); see also Gilbert v. Municipal Court, supra, 73 Cal.App.3d at p. 727, 140 Cal.Rptr. 897; Veh.Code, � 312.) Driving while under the influence of drugs involves a greater impairment of an individual's faculties, and in that respect is not "similar" to being merely under the influence of drugs. Second, the conduct that is the central focus of each statute is not similar. The permissible drug-related misdemeanors described in section 1210, subdivision (d)(1)-simple possession or use of drugs or drug paraphernalia, presence where drugs are used, or failure to register as a drug offender-share an emphasis on the individual offenders own private involvement with the proscribed substance. By contrast, the driving-while-under-the-influence misdemeanor described in Vehicle Code section 23152 primarily is concerned not with the offenders use of the proscribed substance, but with his or her use of a motor vehicle. (See Byrd v. Municipal Court, supra, 125 Cal.App.3d 1054, 1058, 178 Cal.Rptr. 480; People v. Davalos (1987) 238 Cal.Rptr. 50, 192 Cal.App.3d Supp. 10, 14.) The gravamen of driving while under the influence is driving despite an impairment of capacity. (See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349, 211 Cal.Rptr. 742, 696 P.2d 134; People v. Goldberg (2003) 105 Cal.App.4th 1202, 1210, 130 Cal.Rptr.2d 192; Gilbert v. Municipal Court, supra, 73 Cal.App.3d at p. 727, 140 Cal.Rptr. 897.) That offense concerns the driver's activity as it actually or potentially affects or "transacts" with other persons. In this respect, it is more similar to the "commercial" drug offenses that expressly disqualify a defendant from receiving diversion. (� 1210, subd. (a).)")

27 See endnote 21, above.

28 People v. Orabuena (2004) 116 Cal.App.4th 84, 95-96.  ("The conclusion that trial courts retain their traditional discretion under section 1385 to dismiss a count in an accusatory pleading that would otherwise disqualify a defendant from probation and drug treatment under section 1210.1, subdivision (b)(2) is consistent with the purposes of Proposition 36, which are stated in the uncodified portions of the proposition...To permit trial courts in the exercise of their discretion under section 1385 to dismiss, in the same proceeding, a felony count or a misdemeanor count that is unrelated to the use of drugs would foster the goals of Proposition 36 by admitting to the program some defendants who would otherwise be ineligible for Proposition 36 treatment. Concluding that the court has the power to exercise its discretion to make a defendant who is disqualified from Proposition 36 treatment eligible for the program does not mean that the court must exercise its discretion to do so in every case.")

29 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (b)(3), endnote 3, above.

30 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (b)(4), endnote 3, above.

31 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (b)(5), endnote 3, above.

32 California's rules regarding Prop. 36 as they relate to parolees are codified in Penal Code 3063.1 PC.  ("(a) Notwithstanding any other provision of law, and except as provided in subdivision (d), parole may not be suspended or revoked for commission of a nonviolent drug possession offense or for violating any drug-related condition of parole. As an additional condition of parole for all such offenses or violations, the Parole Authority shall require participation in and completion of an appropriate drug treatment program. Vocational training, family counseling and literacy training may be imposed as additional parole conditions. The Parole Authority may require any person on parole who commits a nonviolent drug possession offense or violates any drug-related condition of parole, and who is reasonably able to do so, to contribute to the cost of his or her own placement in a drug treatment program. (b) Subdivision (a) does not apply to: (1) Any parolee who has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7. (2) Any parolee who, while on parole, commits one or more nonviolent drug possession offenses and is found to have concurrently committed a misdemeanor not related to the use of drugs or any felony. (3) Any parolee who refuses drug treatment as a condition of parole. (c) Within seven days of a finding that the parolee has either committed a nonviolent drug possession offense or violated any drug-related condition of parole, the Department of Corrections and Rehabilitation, Division of Adult Parole Operations shall notify the treatment provider designated to provide drug treatment under subdivision (a). Within 30 days thereafter the treatment provider shall prepare an individualized drug treatment plan and forward it to the Parole Authority and to the California Department of Corrections and Rehabilitation, Division of Adult Parole Operations agent responsible for supervising the parolee. On a quarterly basis after the parolee begins drug treatment, the treatment provider shall prepare and forward a progress report on the individual parolee to these entities and individuals. (1) If at any point during the course of drug treatment the treatment provider notifies the Department of Corrections and Rehabilitation, Division of Adult Parole Operations that the parolee is unamenable to the drug treatment provided, but amenable to other drug treatments or related programs, the Department of Corrections and Rehabilitation, Division of Adult Parole Operations may act to modify the terms of parole to ensure that the parolee receives the alternative drug treatment or program. (2) If at any point during the course of drug treatment the treatment provider notifies the Department of Corrections and Rehabilitation, Division of Adult Parole Operations that the parolee is unamenable to the drug treatment provided and all other forms of drug treatment provided pursuant to subdivision (b) of Section 1210 and the amenability factors described in subparagraph (B) of paragraph (3) of subdivision (e) of Section 1210.1, the Department of Corrections and Rehabilitation, Division of Adult Parole Operations may act to revoke parole. At the revocation hearing, parole may be revoked if it is proved that the parolee is unamenable to all drug treatment. (3) Drug treatment services provided by subdivision (a) as a required condition of parole may not exceed 12 months, unless the Department of Corrections and Rehabilitation, Division of Adult Parole Operations makes a finding supported by the record that the continuation of treatment services beyond 12 months is necessary for drug treatment to be successful. If that finding is made, the Department of Corrections and Rehabilitation, Division of Adult Parole Operations may order up to two six-month extensions of treatment services. The provision of treatment services under this act shall not exceed 24 months. (d)(1) If parole is revoked pursuant to the provisions of this subdivision, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of this section. Parole shall be revoked if the parole violation is proved and a preponderance of the evidence establishes that the parolee poses a danger to the safety of others. (2) If a parolee receives drug treatment under subdivision (a), and during the course of drug treatment violates parole either by committing an offense other than a nonviolent drug possession offense, or by violating a non-drug-related condition of parole, and the Department of Corrections and Rehabilitation, Division of Adult Parole Operations acts to revoke parole, a hearing shall be conducted to determine whether parole shall be revoked. Parole may be modified or revoked if the parole violation is proved. (3)(A) If a parolee receives drug treatment under subdivision (a), and during the course of drug treatment violates parole either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210, or by violating a drug- related condition of parole, and the Department of Corrections and Rehabilitation, Division of Adult Parole Operations acts to revoke parole, a hearing shall be conducted to determine whether parole shall be revoked. Parole shall be revoked if the parole violation is proved and a preponderance of the evidence establishes that the parolee poses a danger to the safety of others. If parole is not revoked, the conditions of parole may be intensified to achieve the goals of drug treatment. (B) If a parolee receives drug treatment under subdivision (a), and during the course of drug treatment for the second time violates that parole either by committing a nonviolent drug possession offense, or by violating a drug-related condition of parole, and the Department of Corrections and Rehabilitation, Division of Adult Parole Operations acts for a second time to revoke parole, a hearing shall be conducted to determine whether parole shall be revoked. If the alleged parole violation is proved, the parolee is not eligible for continued parole under any provision of this section and may be reincarcerated. (C) If a parolee already on parole at the effective date of this act violates that parole either by committing a nonviolent drug possession offense, or a misdemeanor for simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or any activity similar to those listed in paragraph (1) of subdivision (d) of Section 1210, or by violating a drug-related condition of parole, and the Department of Corrections and Rehabilitation, Division of Adult Parole Operations acts to revoke parole, a hearing shall be conducted to determine whether parole shall be revoked. Parole shall be revoked if the parole violation is proved and a preponderance of the evidence establishes that the parolee poses a danger to the safety of others. If parole is not revoked, the conditions of parole may be modified to include participation in a drug treatment program as provided in subdivision (a). This paragraph does not apply to any parolee who at the effective date of this act has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7. (D) If a parolee already on parole at the effective date of this act violates that parole for the second time either by committing a nonviolent drug possession offense, or by violating a drug-related condition of parole, and the parole authority acts for a second time to revoke parole, a hearing shall be conducted to determine whether parole shall be revoked. If the alleged parole violation is proved, the parolee may be reincarcerated or the conditions of parole may be intensified to achieve the goals of drug treatment. (e) The term "drug-related condition of parole" shall include a parolee's specific drug treatment regimen, and, if ordered by the Department of Corrections and Rehabilitation, Division of Adult Parole Operations pursuant to this section, employment, vocational training, educational programs, psychological counseling, and family counseling.")

33 See Penal Code 1210.1 PC California "Proposition 36" subdivision (a), endnote 3, above.

34 See same, subdivision (d)(2).

35 People v. Sizemore (2009) 175 Cal.App.4th 864, 874.

36 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (f)(2), endnote 3, above.

See also Penal Code 3063.1 PC California's rules regarding Prop. 36 as they relate to parolees, subdivision (d)(2), endnote 29, above.

37 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (f)(3)(A), endnote 3, above.

See also Penal Code 3063.1 PC California's rules regarding Prop. 36 as they relate to parolees, subdivision (d)(3)(A), endnote 29, above.

38 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (f)(3)(A), endnote 3, above.

39 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (f)(3)(B), endnote 3, above.

See also Penal Code 3063.1 PC California's rules regarding Prop. 36 as they relate to parolees, subdivision (d)(3)(B), endnote 29, above.

40 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (f)(3)(B), endnote 3, above.

41 See also Penal Code 3063.1 PC California's rules regarding Prop. 36 as they relate to parolees, subdivision (d)(3)(B), endnote 29, above.

42 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (f)(3)(C), endnote 3, above.

43 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (e)(1), endnote 3, above.

44 See California Penal Code 1210 PC -- Definitions of terms included in Proposition 36, subdivision (c), endnote 2, above.

See also People v. Hinkel (2005) 125 Cal.App.4th 845, 851.  ("Defendant argues the trial court exceeded its statutory authority in denying his petition on the ground that there was "no reasonable cause to believe the defendant [would] not abuse controlled substances in the future." According to defendant, a defendant has "successfully completed drug treatment" in accordance with section 1210.1, subdivision (d) once he has completed the drug treatment program. Defendant asserts the phrase "and, as a result, there is reasonable cause to believe that the defendant will not abuse controlled substances in the future" is to be read to mean there is, as a matter of law, reasonable cause to believe a defendant will not abuse drugs in the future once he has completed the treatment program... We cannot accept defendant's reading of section 1210, subdivision (c). The plain meaning of the words, and particularly the fact that the statute is written in the conjunctive, compel the conclusion that the court, in order to find that a defendant has successfully completed treatment, must find that a defendant has completed a drug treatment program and that, as a result of that program, there is reasonable cause to believe the defendant will not abuse controlled substances in the future. Mere completion of the program is not enough; the court must also find the program was, for the individual defendant, effective to the point that, postcompletion, reasonable cause exists to believe that the defendant will not abuse controlled substances in the future.")

45 UCLA Integrated Substance Abuse Programs, Evaluation of the Substance Abuse and Crime Prevention Act: Final Report, Apr. 13, 2007, at 4.

46 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (e)(2), endnote 3, above.

47 See California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (e), endnote 3, above.

48 California Penal Code 1000 PC -- Application of chapter to certain violations.  ("(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350, 11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code, or Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold or furnished to another, or subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section 381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance, or Section 4060 of the Business and Professions Code, and it appears to the prosecuting attorney that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, all of the following apply to the defendant: (1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. (2) The offense charged did not involve a crime of violence or threatened violence. (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. (4) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed. (5) The defendant's record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense. (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply to the defendant. Upon the agreement of the prosecuting attorney, law enforcement, the public defender, and the presiding judge of the criminal division of the superior court, or a judge designated by the presiding judge, this procedure shall be completed as soon as possible after the initial filing of the charges. If the defendant is found eligible, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for deferred entry of judgment at the arraignment. If the defendant is found ineligible for deferred entry of judgment, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for deferred entry of judgment is a postconviction appeal. (c) All referrals for deferred entry of judgment granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective. The defendant may request to be referred to a program in any county, as long as that program meets the criteria set forth in this subdivision. (d) Deferred entry of judgment for a violation of Section 11368 of the Health and Safety Code shall not prohibit any administrative agency from taking disciplinary action against a licensee or from denying a license. Nothing in this subdivision shall be construed to expand or restrict the provisions of Section 1000.4. (e) Any defendant who is participating in a program referred to in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.")

49 See Penal Code 1000.2 PC - Hearing by court; determination of deferred entry of judgment; exoneration of bail; progress reports. (" . . . The period during which deferred entry of judgment is granted shall be for no less than 18 months nor longer than three years.")

See also California Penal Code 1210.1 PC (also known as Proposition 36), subdivision (d)(3), endnote 3, above.

50Daily Journal.com - California's Drug Initiative.

51 See same.

52 See same.

53 See same.

54 Penal Code 1000.5 PC -- Preguilty plea drug court program; operation of program; effect of defendant's performance.  ("(a) The presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender, may agree in writing to establish and conduct a preguilty plea drug court program pursuant to the provisions of this chapter, wherein criminal proceedings are suspended without a plea of guilty for designated defendants. The drug court program shall include a regimen of graduated sanctions and rewards, individual and group therapy, urine analysis testing commensurate with treatment needs, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, and other requirements as agreed to by the presiding judge or his or her designee, the district attorney, and the public defender. If there is no agreement in writing for a preguilty plea program by the presiding judge or his or her designee, the district attorney, and the public defender, the program shall be operated as a deferred entry of judgment program as provided in this chapter. (b) The provisions of Section 1000.3 and Section 1000.4 regarding satisfactory and unsatisfactory performance in a program shall apply to preguilty plea programs. If the court finds that (1) the defendant is not performing satisfactorily in the assigned program, (2) the defendant is not benefiting from education, treatment, or rehabilitation, (3) the defendant has been convicted of a crime specified in Section 1000.3, or (4) the defendant has engaged in criminal conduct rendering him or her unsuitable for the preguilty plea program, the court shall reinstate the criminal charge or charges. If the defendant has performed satisfactorily during the period of the preguilty plea program, at the end of that period, the criminal charge or charges shall be dismissed and the provisions of Section 1000.4 shall apply.")

55 See same.

56 See same.

57 Sacramento criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on cases ranging from DUIs and drug charges co complex, high profile murders . . . and had an astounding 96% success rate in felony jury trials. Mr. Shouse frequently appears as a guest legal commentator on national television.

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