ANAHEIM LAWYERS DROP TWO PROP. 36 APPEALS

They Won't Oppose Drug-Treatment Sentences Under Certain Circumstances

Anaheim prosecutors on Thursday dropped their appeal of Proposition 36
cases in which judges sent defendants caught with drug paraphernalia - but
not drugs -- to drug-treatment programs instead of jail.

They also won't pursue their appeal of cases in which defendants were
sentenced under Prop. 36 even though they were arrested before the law took
effect.

The city attorney's dropping further appeal on the cases of nine defendants
in connection with the two issues came in the wake of a Superior Court
Appellate Department ruling against the city.

Prop. 36 took effect July 1 and allows defendants charged with possession
of drugs for personal use to be sent to treatment programs rather than to
jail.

The August 15 ruling, made public Thursday, backed misdemeanor trial court
judges who extended Prop. 36 to defendants charged before the law took
effect on July 1. The ruling said defendants charged with possession of
drug paraphernalia but possessing no drugs were eligible for Prop. 36
treatment programs.

Anaheim is the only city in Orange County that prosecutes misdemeanor drug
cases; other cities rely on the district attorney.

The ruling by Judges Frank Fasel and Nancy Wieben Stock was critical of
Anaheim.

The two judges said that to deny the same treatment to those arrested only
for possession of paraphernalia "would lead to absurd results that run
contrary to the expressed intent of the voters."

Prop. 36, passed by a 61 percent margin, took effect on July 1. Orange
County implemented a pilot program last spring and many judges throughout
the state allow drug defendants Prop. 36 treatment even if they were
arrested prior to July 1.

Assistant Anaheim City Attorney Pat Ahle said the city would appeal future
Prop. 36 cases if the city found legal reasons to contest actions by
judges. He said the ruling by Judges Fasel and Stock prompted the decision
to end the current appeal.

Mayor Tom Daly did not respond to a request for an interview.

But Deputy Orange County District Attorney Brian Gurwitz, who is monitoring
Prop. 36 for the county prosecutor, backed Anaheim on the paraphernalia
issue. The law affords Prop. 36 treatment to those arrested with drugs and
paraphernalia but is mute on those arrested only for possession of
paraphernalia.

"Drug offenders should only receive Proposition 36 treatment for the
offenses listed in the statute. We disagree with the court's expansion of
the program," he said.

A similar appeal is under way in Northern California, said Bill Zimmerman,
of the California Campaign for New Drug Policies. "We're gratified by the
announcement by Anaheim," he said.

Commissioner Erick Larsh, who supervises the phase-in of Prop. 36 in the
Orange County courts, said the dropping of the appeal would remove a major
uncertainty for judges working Prop. 36 cases.

So far, more than 1,400 defendants have been sent to Prop. 36, or related
treatment programs and only an estimated 15 percent have failed to enroll.

Assistant Public Defender Robert Knox said he was pleased the appeal being
dropped by Anaheim.

"We really thought these people were eligible and the (sentencing) judges
were acting the way the law was intended."