People v. Mendoza

Opinion

MOSK, J. Defendant and appellant Rafael Mendoza pleaded guilty to a nonviolent drug possession offense in 1997, but he failed to appear for his sentencing hearing. Thereafter, the voters passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, which measure became effective on July 1, 2001. The act provides for probation sentences for certain nonviolent drug offenders and operates prospectively. Defendant was [1032]finally arrested in May 2002, and received a sentence that included time to be served in the county jail. We hold that defendant is not entitled to disposition under Proposition 36, because he was “convicted,” as that term is used in the act, before its effective date. Therefore, we affirm the judgment.

Factual Background

In October 1997, defendant pleaded guilty to one count of possession of a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a). The terms of his plea agreement were that he would be placed on three years’ probation and serve one year in county jail. Defendant failed to appear at a probation and sentencing hearing that was scheduled for November 1997. The trial court issued a bench warrant for his arrest.

Defendant was arrested pursuant to the bench warrant in April 2002. The trial court denied defendant’s request for disposition under Proposition 36 and to withdraw his plea. The court sentenced defendant to three years of formal probation on the conditions that he serve 365 days in county jail, pay a $200 restitution fine (Pen. Code,1 § 1202.4, subd. (b)), and pay a $50 lab analysis fee (Health & Saf. Code, § 11372.5) plus penalty assessments in the amount of $85 (§ 1464; Gov. Code, § 76000).

Discussion

Defendant, relying primarily on In re DeLong (2001) 93 Cal.App.4th 562, 567-568 [113 Cal.Rptr.2d 385] {DeLong), contends that although he pleaded guilty to the nonviolent drag possession offense in 1997, he is entitled to disposition under Proposition 36 because he was not sentenced until May 2002, after the effective date of Proposition 36. We do not agree.

Proposition 36 added section 1210.1 to the Penal Code. Section 1210.1, subdivision (a), provides the following: “(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drag possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drag treatment program. 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.”