JUDGES DIVIDED ON APPLYING PROP. 36 TO DRUG DEFENDANTS

Laws: Courts Are Unsure If They Can Dismiss Prior Convictions To Make
Offenders Eligible For Treatment, Not Prison.

Judges dealing with Proposition 36 are divided about which drug defendants
with prior felony convictions are eligible for treatment rather than prison.

The law, approved by California voters last fall, states that defendants who
have been convicted of serious or violent felonies are eligible for drug
treatment if they have been out of prison for five years and have not
committed certain types of crimes.

But judges have different views about whether they have the authority to
dismiss prior convictions in order to help defendants receive treatment.
"There is a split of opinion," said Judge Michael Tynan, who supervises the
drug courts for Los Angeles County. "Good arguments could be made both ways.
I think we are going to have to wait to see what the [appellate] courts
decide."

This is just the latest problem in interpreting Proposition 36. The law
gives offenders convicted of possessing, using or transporting drugs for
personal use the chance to receive probation and treatment rather than
prison sentences.

Appellate courts have already decided to hear arguments on whether
defendants convicted before the July 1 effective date can receive treatment
rather than prison time. Those courts soon may be faced with another
question on the eligibility of defendants who have strikes on their record
and have not been out of prison for five years.

"This is a very flawed and poorly written statute," said Bob Mimura,
director of the county's Criminal Justice Coordinating Committee. "Judges
have to make calls one way or the other, using their best judgments and
their best interpretation of the law."

Deputy Dist. Atty. Debra Starr, who prosecutes Proposition 36 cases, said
there are certain restrictions on who is eligible for treatment under the
proposition.

"The reality is that there is a limited amount of funding," Starr said.

An example of the issue facing judges occurred in Los Angeles County
Superior Court this week.

Attorney Vivian Gray asked Judge Elizabeth Grimes to dismiss defendant Marie
Humphries' 1990 felony conviction so that the woman could be placed in drug
rehabilitation rather than prison.

Gray thought Humphries, charged with cocaine possession, would be an ideal
candidate for treatment because her crimes stemmed from her substance abuse
problem. But Humphries, 40, had been out of prison only 4 1"2 years when she
was arrested in March.

Prosecutors opposed the defense motion, and the judge said her hands were
tied.

"Personally, I would like to see her receive treatment, but I don't think
this court is free to decide to give her treatment," Grimes said. "I think
it would behoove the people to decide what's in the best interest of
society."

After Grimes denied the defense motion, Humphries pleaded no contest and was
sentenced to two years and eight months in state prison.

"This woman has a disease," Gray said later. "She has a drug problem. She
should be able to participate in Proposition 36. . . . I tried. And I lost."