MORE DRUG OFFENDERS MAY GET TREATMENT

Law: Appellate Panel Says That Under Prop. 36, Offenders Found Guilty But
Not Sentenced Before July 1 Are Eligible For Narcotics Rehabilitation
Instead Of Jail.

A state court of appeal unanimously ruled Wednesday that the drug treatment
initiative, Proposition 36, applies to nonviolent offenders convicted but
not sentenced before the measure took effect July 1.

Although other appellate courts in California are still reviewing the
issue, the 3-0 decision by the 2nd District Court of Appeal in Los Angeles
is the first published opinion on the landmark initiative. As such, it is
expected to be followed by lower courts throughout the state, legal experts
say.

Had the appellate court ruled that Proposition 36 applied only to drug
convictions after July 1, it could have meant rehearing thousands of cases
of people already in drug treatment. "It is a big decision," said Los
Angeles County Deputy Public Defender Alex Ricciardulli, "because if it had
gone the other way, it could have been chaos."

The initiative, approved by 61% of state voters last November, created
confusion in some jurisdictions about which defendants were eligible for
treatment instead of prison time.

The proposition changed state sentencing laws so that those convicted of a
nonviolent drug crime could receive probation rather than face state prison
or county jail. Shortly after its passage, court officials estimated that
the alternative sentencing, which requires completion of a drug treatment
program, could apply to as many as 16,000 defendants a year in Los Angeles
County alone.

But since the measure took effect, one key area of disagreement has been
whether Proposition 36 applies to those who had been convicted, but not
sentenced, of using, possessing or transporting drugs for personal use.

The ruling Wednesday came in the case of 36-year-old Janet DeLong, who was
denied access to a Proposition 36 treatment program after being convicted
in May of possessing less than a gram of cocaine.

In DeLong's case, the Los Angeles County district attorney's office
maintained that because the Culver City woman was charged and convicted of
her crime before July 1, she was not eligible for a drug treatment program
when she was sentenced.

At DeLong's sentencing on July 12, Superior Court Judge Stephanie Sautner
agreed that DeLong was not eligible for drug treatment and sentenced her to
three years' probation with the first 150 days to be served in county jail.

But at the request of the Los Angeles County public defender's office, that
sentence was blocked by the appellate court pending its decision on
eligibility.

In interpreting the term "convicted," the court said, it was mindful that
when a statute is reasonably open to two interpretations, "ordinarily the
construction which is more favorable to the defendant will be adopted."

And because Proposition 36 precludes those who violate probation or parole
from eligibility, the court added, "no rationale appears to exclude from
its wide reach the limited class of defendants who, as of the effective
date, had been adjudged guilty and were awaiting sentencing."

Although the district attorney's office had challenged DeLong's eligibility
for Proposition 36, it had since dropped such challenges pending the
appellate court's decision. Special Counsel Lael Rubin said Wednesday the
district attorney's office had no plans to seek a review of the court's
decision.

"It is a well-written opinion," she said.

Although the ruling has statewide implications, its impact on Orange County
is not expected to be as pronounced as in other areas. Orange County judges
started sending drug offenders into treatment several months before the law
took effect--with the blessing of the district attorney's office.

Dave Fratello, co-author of Proposition 36, praised the ruling, calling it
"a victory for the intent of the initiative.

"Over time, this issue would have evaporated by itself simply because you
would run out of people who were arrested and convicted before the
effective date," Fratello said. "But anything that gets more people into
treatment fulfills the will of the voters, and that is why we welcome this
ruling."