Prop. 36 Eligibility Debated in Courts

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.