PROP. 36 ELIGIBILITY DEBATED IN COURTS

Laws: An appeals panel will determine whether drug defendants convicted
before the measure went into effect can be given treatment rather than jail
time.

Entering the debate over Proposition 36, a state appeals court has agreed
to hear arguments on whether drug defendants convicted before the measure
took effect July 1 can be sentenced to drug treatment rather than time
behind bars.

Responding to a writ from the Los Angeles County public defender's office,
a second appellate district panel on Thursday ordered the release of an
inmate who had been sentenced to jail rather than treatment. The defendant,
Janet Delong, was found guilty of cocaine possession in May, but was not
sentenced until July 12.

The state appellate court will take up the issue in late September. At
Delong's sentencing, Superior Court Judge Stephanie Sautner denied a public
defender's request to sentence her under the initiative.

"I don't find that she falls within the scheme of Proposition 36 within the
time frame allotted," said Sautner, a judge at the Airport Branch Courthouse.

Approved by 61% of California voters in November, Proposition 36 gives
first- and second-time drug offenders convicted of possessing, using or
transporting drugs for personal use the chance to receive probation and
treatment rather than jail sentences.

As courts grapple with how to implement the law, legal challenges are
occurring around the state. In Orange County, prosecutors have appealed
judges' rulings that authorized drug treatment for defendants whose crimes
they say are not covered by the initiative. Los Angeles County prosecutors,
meanwhile, are studying the possibility of appealing rulings that have
allowed drug offenders arrested before July 1 to participate in Proposition
36 programs.

The outcome of the Sept. 24 appellate court hearing could affect several
cases. Currently, the July 1 cutoff date is being interpreted differently
from court to court.

"There are judges on both sides on this issue," said Los Angeles County
Superior Court Judge Michael Tynan, who supervises the county's drug
courts. "Nobody is going to be totally happy until the appellate court
tells us exactly what cases come in under Proposition 36."

The final word eventually will come from the California Supreme Court, he
said. At this point, Tynan believes most California judges recognize that
the spirit of the law is to allow for treatment rather than incarceration.

Judge Stephen Marcus shared that opinion when he granted a defense
attorney's request to sentence Los Angeles Avenger quarterback Todd
Marinovich under Proposition 36. Marinovich was arrested in December and
pleaded no contest to heroin possession in March.

In another high-profile case, actor Robert Downey Jr. was arrested in April
but waited until July 16 to plead no contest to charges of possessing
cocaine and being under the influence. Downey also was placed on probation
and allowed to enter drug treatment.

Proposition co-author Dave Fratello said that he intended the law to apply
to defendants sentenced after July 1, but that some prosecutors are reading
the law differently. "There are some forces out there that are trying to
find ways to exclude people from the proposition, and this is one of the
ways to do it," he said.

Delong, 35, was arrested in August for possession of cocaine and was found
guilty by a jury May 18. Out of custody on her own recognizance, she
voluntarily enrolled in an outpatient rehabilitation program. On July 12,
Delong was sentenced to 150 days in the Los Angeles County Jail and
immediately taken into custody.

At the sentencing, prosecutors said the Culver City woman should not be
allowed to take advantage of the new initiative because she was convicted
before July 1.

"Our office believes she's not eligible under the law," said Jane Robison,
a district attorney's spokeswoman. "It is our reading of the law that the
cutoff date is the conviction date."

Defense attorneys argued that the official conviction date is when the
judge imposes the sentence. They believe that the Delong is an ideal
candidate for rehabilitation and that it does not make sense for her to be
incarcerated.

"It boils down to an issue of fairness," said Deputy Public Defender Alex
Ricciardulli, who is handling the Delong appeal. "Here is a person just as
needy and as drug-addicted as anyone else. It would be extremely unfair to
exclude her just because of the timing of the offense."

Ricciardulli filed a writ with the 2nd District Court of Appeal on July 19,
and the court issued the order to show cause that same day. Delong was
released from jail the next day, attorneys said.