JUDGES EXTEND DRUG REHAB FOR FELONS

Courts: Appellate Justices Rule That Proposition 36 May Apply To Those Who
Have Been Out Of Prison Less Than Five Years.

A state appellate court ruled Tuesday that judges can allow defendants
convicted of felonies in recent years to receive drug treatment under
Proposition 36.

The ruling, which could affect hundreds of defendants convicted of minor
drug use, will help clear up confusion among California judges over who is
eligible for the initiative. The 2nd District Court of Appeal in Los
Angeles issued the published opinion a few days after hearing oral arguments.

Approved by 61% of state voters in November 2000, Proposition 36 allows
defendants convicted of using, possessing or transporting drugs for
personal use to receive treatment instead of jail time. But the statute
read that defendants who have been convicted of serious or violent felonies
are eligible for drug treatment only if they have been out of prison for
five years. Since Proposition 36 took effect more than six months ago,
judges have been divided about whether they had the power to dismiss prior
felony convictions for the purposes of sentencing a defendant to drug
treatment. Los Angeles County Superior Court Judge Ana Maria Luna said she
believed Proposition 36 did not allow her that power. Luna praised
Tuesday's ruling for enabling her to place defendants who need help into
rehabilitation programs.

But she said judges should be cautious when they refer defendants with
violent felony convictions to treatment programs. "In exercising that
discretion, the court is going to have to look at the overall criminal
behavior of the individual . . . and if the person is at a point in their
life that they are ready for treatment," Luna said.

In October, the same appellate court cleared up another area of
disagreement when it ruled that the initiative applies to cases of
nonviolent offenders convicted but not sentenced before the measure took
effect July 1.

Tuesday's ruling came in the case of Ronald Lee Varnell, who was charged in
May 2001 with possession of methamphetamine. Prosecutors argued that
Varnell was not eligible for Proposition 36 treatment because he was
convicted in 1995 of assault with a deadly weapon and was released three
years before last year's drug arrest. Defense attorneys asked the judge to
dismiss the conviction and refer Varnell to drug treatment.

Superior Court Judge Joan Comparet-Cassani agreed to the dismissal so
Varnell's sentence would be cut in half to 16 months in prison, but she
denied his request to enter a drug treatment program.

In their 17-page ruling, the appellate justices wrote that judges have long
had the authority under state law to dismiss prior felony convictions for
purposes of sentencing. Because the statewide proposition did not prohibit
the use of that law, the justices wrote that "we must conclude that power,
firmly embedded in our criminal jurisprudence, coexists with the sentencing
scheme at issue."

The justices directed Comparet-Cassani to hold a new sentencing hearing for
Varnell, but did not require her to place him in drug treatment.

Deputy Public Defender Alex Ricciardulli said the appellate court decision
empowers trial judges and "further extends the umbrella of rehabilitation"
to defendants who would have been disqualified otherwise.

But Marc Nolan, who argued the case for the state attorney general's
office, said the ruling "doesn't necessarily change the result in this case
or in any other case." The ruling doesn't say judges have to dismiss
convictions to make defendants eligible for Proposition 36, he said.

Nolan said his office has not decided whether to appeal the court's decision.