People v. Foreman

[341]

Opinion

CORRIGAN, J.

Here we conclude that forging or presenting a forged prescription to obtain drugs, in violation of Health and Safety Code section 11368, does not fall under Proposition 36.

FACTUAL AND PROCEDURAL BACKGROUND

Our discussion of the facts is limited because no preliminary hearing was conducted and defendant agreed to a court trial based on the police reports. Defendant was arrested when he appeared at a pharmacy to collect a prescription for Vicodin. The prescription was written, without authorization, on a doctor’s preprinted pad. The physician’s signature was forged. Similar prescriptions were discovered at other pharmacies.

Initially referred to the drug court for treatment, defendant was ultimately excluded from the program following multiple drug test failures. He has a 20-year history of heroin and Vicodin addiction. Having been charged with 15 felony counts, he was convicted of violating Health and Safety Code section 11368 on four separate dates.

In rejecting defendant’s argument that he was eligible for treatment under Proposition 36, the court held that forging or uttering a prescription is not a “nonviolent drug possession offense” within the meaning of the statutory scheme.

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Defendant was sentenced to four years in prison but placed in the California Rehabilitation Center as a drug addict.

DISCUSSION

This case of first impression turns on whether a violation of Health and Safety Code section 11368 falls under the statutes codifying Proposition 36. As noted, we hold that it does not.

With some exceptions not relevant here, Proposition 36 requires probation and drug treatment for those convicted of a “nonviolent drug possession offense.” (Pen. Code, § 1210.1, subd. (a).) Such an offense is defined as “the unlawful personal use, possession for personal use, or transportation for personal use” of certain controlled substances or as being under the influence of a drug in violation of Health and Safety Code section 11550. (Pen. Code, § 1210, subd. (a).) Drug sale, production and manufacture do not fall within the definition.