Supreme Court of California Justia
Docket No. S105225
People v. Floyd

Filed 7/21/03


Plaintiff and Respondent,
) Ct.App.
Defendant and Appellant.
Super. Ct. No. 80646A

In this case we must decide whether Proposition 36, the Substance Abuse
and Crime Prevention Act of 2000, applies to defendants who were sentenced
prior to the act’s effective date of July 1, 2001, but whose judgments were not yet
final as of that date. We conclude that the act’s saving clause—which states that
“[e]xcept as otherwise provided, the provisions of this act shall become effective
July 1, 2001, and its provisions shall be applied prospectively” (Prop. 36, § 8, as
approved by voters, Gen. Elec. (Nov. 7, 2000) (Prop. 36), reprinted at 51 West’s
Ann. Pen. Code (2003 supp.) foll. § 1210, p. 221)—indicates the act was not
intended to apply retroactively to this subset of cases. We also reject defendant’s
alternative claim that the failure to accord retroactive effect to Proposition 36
would violate his state and federal right to equal protection. We therefore affirm
the Court of Appeal.

On April 30, 2000, Bakersfield police responded to the reported natural
death of defendant’s long-term girlfriend. Defendant was distraught and crying.
At some point, while standing near the body of his girlfriend, defendant began a
sustained bout of coughing. Officer Damacio Diaz saw a small plastic baggie fly
out of defendant’s mouth and land on the deceased. As soon as it landed,
defendant grabbed the baggie and shoved it underneath the body. Officer Diaz
retrieved the baggie, which contained 0.25 grams of cocaine.
A jury convicted defendant of possession of cocaine (Health & Saf. Code,
§ 11350, subd. (a)) and found he had five prior felony convictions within the
meaning of the “Three Strikes” law: two attempted robberies and an assault with a
deadly weapon causing great bodily injury on October 21, 1981; a burglary on
October 30, 1984; and a burglary on January 7, 1985. On November 9, 2000, the
trial court sentenced defendant to a third strike term of 25 years to life.
A divided panel of the Court of Appeal affirmed in an opinion published in
On November 7, 2000, two days before defendant was sentenced,
California voters passed Proposition 36, the Substance Abuse and Crime
Prevention Act of 2000. Proposition 36 amended state law to require that certain
adult drug offenders receive probation, conditioned on participation in and
completion of an appropriate drug treatment program, instead of receiving a prison
term or probation without drug treatment. (Pen. Code, § 1210.1.)
Under new Penal Code section 1210.1, subdivision (a), a defendant
convicted of a nonviolent drug possession offense “shall” receive probation,
provided the defendant is not rendered ineligible under subdivision (b). A court
may not impose incarceration as an additional condition of probation for
defendants eligible under the statute. (Pen. Code, § 1210.1, subd. (a).) The new
law also created the Substance Abuse Treatment Trust Fund, with an initial $60
million appropriated for the 2000-2001 fiscal year and $120 million appropriated
for each of the following five years. (Health & Saf. Code, §§ 11999.4, 11999.5.)
In uncodified section 8 (Section 8), entitled Effective Date, the initiative
stated: “Except as otherwise provided, the provisions of this act shall become
effective July 1, 2001, and its provisions shall be applied prospectively.” (Prop.
36, § 8, reprinted at 51 West’s Ann. Pen. Code, supra, foll. § 1210, p. 221.)
Defendant contends that because Proposition 36 is an ameliorative statute
and his conviction is not yet final, he is entitled to the initiative’s benefits under
our rule in In re Estrada (1965) 63 Cal.2d 740 (Estrada). Under the Estrada rule,
an amendatory statute lessening punishment is presumed to apply in all cases not
yet reduced to final judgment as of the amendatory statute’s effective date. (Id. at
p. 744.) In the alternative, he contends that it would violate principles of equal
protection to deny him the ameliorative benefits of the initiative. We reject both
The parties agree that Proposition 36 ameliorates the punishment for those
persons convicted of nonviolent drug possession offenses who are eligible for its
programs and that defendant might be eligible for those programs if Proposition 36
applies here. Defendant argues that Proposition 36 should apply to him because
his conviction was not yet final at the time Proposition 36 became effective. He
relies on Estrada, supra, 63 Cal.2d at page 744, where we held that “[i]f the
amendatory statute lessening punishment becomes effective prior to the date the
judgment of conviction becomes final then, in our opinion, it, and not the old
statute in effect when the prohibited act was committed, applies.” The Attorney
General, on the other hand, points out that Estrada does not apply “when there is a
saving clause” (id. at p. 747) and finds such a saving clause in Section 8 of the
initiative, which states, “Except as otherwise provided, the provisions of this act
shall become effective July 1, 2001, and its provisions shall be applied
Whether Proposition 36 applies here requires us to “ascertain the legislative
intent—did the [voters] intend the old or new statute to apply?” (Estrada, supra,
63 Cal.2d at p. 744; People v. Nasalga (1996) 12 Cal.4th 784, 791 (Nasalga) (plur.
opn. of Werdegar, J.); id. at p. 799 (conc. opn. of Kennard, J.).) Since the voters
legally and constitutionally could have chosen either one (Estrada, supra, 63
Cal.2d at p. 744), we must decide which one was intended.
We begin with section 3 of the Penal Code. That section embodies the
general rule of statutory construction that “when there is nothing to indicate a
contrary intent in a statute it will be presumed that the Legislature intended the
statute to operate prospectively and not retroactively.” (Estrada, supra, 63 Cal.2d
at p. 746.) We found a contrary intent in Estrada where a criminal statute had
been amended to lessen the punishment after the prohibited act was committed but
before final judgment had been entered in the case. Although the Legislature did
not expressly state whether the old or new statute should apply in that
circumstance, we found one consideration of “paramount importance” (id. at p.
744): “ ‘A legislative mitigation of the penalty for a particular crime represents a
legislative judgment that the lesser penalty or the different treatment is sufficient
to meet the legitimate ends of the criminal law.’ ” (Id. at p. 745.) From this, “[i]t
is an inevitable inference that the Legislature must have intended that the new
statute imposing the new lighter penalty now deemed to be sufficient should apply
to every case to which it constitutionally could apply. The amendatory act
imposing the lighter punishment can be applied constitutionally to acts committed
before its passage provided the judgment convicting defendant of the act is not
final.” (Ibid.) Thus, “[i]f there is no saving clause . . . the rule of construction that
statutes are normally to be interpreted to operate prospectively and not
retroactively (a rule embodied in section 3 of the Penal Code) has been rebutted.”
(Id. at p. 747, italics added.)
The problem for defendant is that Section 8 of Proposition 36 does include
a saving clause, which states that the act “shall be applied prospectively.” We
need not range far to discover what “prospectively” means, since we have used the
term ourselves with regularity. (See People v. Weidert (1985) 39 Cal.3d 836, 845-
846.) We used the term in Estrada to refer to the general rule of construction,
embodied in Penal Code section 3, that an amended statute should not be applied
retroactively to cases not yet reduced to final judgment. (Estrada, supra, 63
Cal.2d at pp. 746-747.) We used the term in Nasalga for the same purpose: “The
rule in Estrada, of course, is not implicated where the Legislature clearly signals
its intent to make the amendment prospective, by the inclusion of an express
saving clause or its equivalent.” (Nasalga, supra, 12 Cal.4th at p. 793 (plur. opn.
of Werdegar, J.), italics added.) We therefore conclude that this language, at least
when read in isolation, reveals an intent to avoid the Estrada rule. (In re Pedro T.
(1994) 8 Cal.4th 1041, 1049 [“what is required is that the Legislature demonstrate
its intention with sufficient clarity that a reviewing court can discern and
effectuate it”]; see Nasalga, supra, 12 Cal.4th at p. 793 (plur. opn. of Werdegar,
As defendant points out, however, the two main clauses in Section 8 cannot
be read in isolation but are preceded by an introductory clause: “Except as
otherwise provided . . . .” Defendant reasons that the phrased exception
necessarily refers to the Estrada rule and concludes that Proposition 36 does apply
prospectively except to the extent that Estrada provides for retroactive application.
We do not agree with defendant’s strained interpretation of Section 8. First, it is
not entirely clear the introductory clause even modifies Section 8’s second main
clause—“its provisions shall be applied prospectively”—rather than just the first
main clause—“the provisions of this act shall become effective July 1, 2001.”
(See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1114 [applying the “ ‘ “last antecedent rule” ’ ”].) After all, the provisions of the
act did become effective July 1, 2001, except as otherwise provided in new Health
& Safety Code section 11999.5, which stated that $60 million shall be
appropriated from the General Fund to the Substance Abuse Treatment Trust Fund
“[u]pon passage of this act.” (See In re Scoggins (2001) 94 Cal.App.4th 650,
656.) Second, even if the introductory clause were to extend to the second main
clause, the contemplated exceptions to prospectivity appear to be the relatively
narrow ones provided elsewhere in the act. As defendant concedes, this exception
encompasses those on probation or parole from convictions that well predate July
1, 2001—i.e., those who were on probation for nonviolent drug possession
offenses or on parole (but not for a serious or violent felony) on the effective date
of the act and who were subsequently found to have violated probation or parole
by committing a nonviolent drug possession offense or by violating a drug-related
condition of probation or parole. (Pen. Code, §§ 1210.1, subd. (e)(3)(D)-(F)
[probation], 3063.1, subd. (d)(3)(C), (D) [parole].) That Proposition 36 applies to
these individuals whose convictions predate the initiative’s effective date,
however, is not proof that it applies to all persons whose convictions predate the
effective date. Third, defendant’s proffered interpretation gives no effect to the
statement that the act’s provisions shall be applied prospectively. According to
defendant, Section 8 “merely defines a nonexclusive class of defendants [who] are
eligible for its provisions.” If we were to agree with defendant, however, the
statement that the act’s provisions “shall be applied prospectively” would be
drained of meaning, since the voters could have accomplished the same result by
omitting the clause entirely. That is, in the absence of the saving clause, we would
have applied the Estrada rule and extended the benefits of Proposition 36 to all
those whose convictions were not yet final as well as to those whose convictions
postdated the act’s effective date. We cannot embrace an interpretation that makes
Section 8 mere surplusage. (Cooley v. Superior Court (2002) 29 Cal.4th 228,
Defendant’s alternate contention, that he is “convicted” within the meaning
of Penal Code section 1210.1, subdivision (a)(1), only when his conviction
becomes final, is merely a repackaging of the preceding argument. Were we to
construe section 1210.1 to apply to all those whose convictions are not yet final,
we would again be unable to accord any meaning to the provision in Section 8 that
the act shall be applied prospectively. To address that lacuna, defendant suggests
that the term “prospectively” was meant “to affirm that [the act’s] provisions
would not be applied to those whose convictions had become final since the law
routinely excludes those whose convictions are final from the effects of new
legislation.” However, if it is the “ ‘universal common-law rule’ ” (People v.
Rossi (1976) 18 Cal.3d 295, 304) and perhaps a constitutional limitation (see
Estrada, 63 Cal.2d at p. 745) that ameliorative statutes not be applied to judgments
that are already final, it is unlikely the voters would have perceived a need to
reiterate this widespread and longstanding rule in a separate, uncodified section.
We conclude instead that the initiative means what it says, i.e., that except as
otherwise provided, the act shall be applied prospectively.
We find further support for our plain-language construction in the fact that
the initiative, which was adopted by the voters on November 7, 2000, and would
ordinarily have taken effect the next day (Cal. Const., art. II, § 10, subd. (a)), did
not take effect until July 1, 2001. “Postponement of the effective date for an act
indicates that it should have only prospective application.” (2 Singer, Statutes and
Statutory Construction (6th ed. 2001) § 41:4, p. 410; accord, Time Warner Cable
v. Doyle (7th Cir. 1994) 66 F.3d 867, 879-880, fn. 16 [“postponement of the
effective date of a regulation evinces an intent that it be prospective”]; U. S. v.
Brebner (9th Cir. 1991) 951 F.2d 1017, 1022 [six-month delay in the effective
date of a statute lessening punishment indicates that it has no retroactive effect];
Wright v. Director, FEMA (11th Cir. 1990) 913 F.2d 1566, 1572, fn. 13 [same];
Dion v. Secretary of Health and Human Services (1st Cir. 1987) 823 F.2d 669, 672
[“the thirteen-month postponement by Congress of the effective date of the statute
shows a clear intent to obviate any retrospective application”]; Eastwind, Inc. v.
State (Alaska 1997) 951 P.2d 844, 847 [delayed effective date “provides further
support for the proposition that the 1993 amendments were intended to have
prospective application only”]; People v. Ramsey (Ill. 2000) 735 N.E.2d 533, 548
[“Courts have held that the legislature’s postponement of an effective date is direct
evidence that a retroactive application was not intended”]; Deutsch v. M.P.
Catherwood (N.Y. 1973) 341 N.Y.S.2d 600, 601-602 [“If the amendments were to
have retroactive effect, there would have been no need for any postponement”]; cf.
Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 223 [discussing the
postponement of the statute’s operative date].) The inference seems inescapable
that the voters wanted to ensure an orderly transition by an immediate
appropriation of $60 million to the Substance Abuse Treatment Trust Fund to
expand existing treatment programs and create new ones before their caseloads
increased—a sequence that depended on prospective application of the act.
Our construction is also supported by the ballot argument distributed to
voters for the November 2000 General Election. Proponents of the measure
explained that “[i]f Proposition 36 passes, nonviolent drug offenders convicted for
the first or second time after 7/1/2001, will get mandatory, court-supervised,
treatment instead of jail.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in
favor of Prop. 36, p. 26, italics added.)
Finally, we do not agree that the rule of lenity requires us to construe
Proposition 36 to apply retroactively to defendant. The rule of lenity applies
“ ‘only if the court can do no more than guess what the legislative body
intended.’ ” (People v. Avery (2002) 27 Cal.4th 49, 58.) That situation arises
when “ ‘two reasonable interpretations of the same provision stand in relative
equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner
is impracticable.’ ” (Ibid.) For the reasons stated above, we do not believe
defendant’s interpretation is reasonable. Hence, the rule of lenity cannot compel a
different result.
Defendant argues, in the alternative, that denying him the benefits of
Proposition 36 violates his right to equal protection under the state and federal
Constitutions. By creating two classes of nonviolent drug offenders—those
convicted before July 1, 2001, whose judgments are not yet final, and those
convicted after July 1, 2001—Section 8, he claims, treats two similarly situated
groups in an unequal manner. In defendant’s view, no compelling state interest
justifies the disparity in treatment.
Defendant has not cited a single case, in this state or any other, that
recognizes an equal protection violation arising from the timing of the effective
date of a statute lessening the punishment for a particular offense. Numerous
courts, however, have rejected such a claim—including this court. (Baker v.
Superior Court (1984) 35 Cal.3d 663, 668 [“ ‘A refusal to apply a statute
retroactively does not violate the Fourteenth Amendment’ ”], quoting People v.
Aranda (1965) 63 Cal.2d 518, 532.) “The Legislature properly may specify that
such statutes are prospective only, to assure that penal laws will maintain their
desired deterrent effect by carrying out the original prescribed punishment as
written.” (In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman); see also
People v. Willis (1978) 84 Cal.App.3d 952, 956 [acknowledging that “all effective
dates of statutes are somewhat arbitrary,” but rejecting equal protection claim];
People v. Superior Court (Gonzales) (1978) 78 Cal.App.3d 134, 142 [same].) The
voters have the same prerogative. (See Rossi v. Brown (1995) 9 Cal.4th 688, 696,
fn. 2.)
Moreover, Estrada itself recognized that when the Legislature has amended
a statute to lessen the punishment, its determination as to which statute should
apply to all convictions not yet final, “either way, would have been legal and
constitutional.” (Estrada, supra, 63 Cal.2d at p. 744, italics added; In re Bender
(1983) 149 Cal.App.3d 380, 388 [“punishment-lessening statutes given
prospective application do not violate equal protection”]; People v. Henderson
(1980) 107 Cal.App.3d 475, 488, fn. 5 [“Retroactive application of a punishment-
mitigating statute is not a question of constitutional right but of legislative intent”];
Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 114 [“The short answer is
Estrada, supra, . . . which stated lucidly that the Legislature is not compelled to
give sentencing changes retroactive effect”].) That the Legislature’s choice, either
way, would be constitutional is the foundation for our oft-repeated statement that,
in this type of circumstance, the problem “is one of trying to ascertain the
legislative intent—did the Legislature intend the old or new statute to apply?”
(Estrada, supra, 63 Cal.2d at p. 744; Nasalga, supra, 12 Cal.4th at p. 791 (plur.
opn. of Werdegar, J.) [quoting Estrada]; In re Pedro T., supra, 8 Cal.4th at p.
1045 [same]; People v. Francis (1969) 71 Cal.2d 66, 76 [same].) Defendant’s
equal protection argument presumes that the Estrada rule is constitutionally
compelled. As we have stated repeatedly, it is not.
Other jurisdictions are in accord. “[A] reduction of sentences only
prospectively from the date a new sentencing statute takes effect is not a denial of
equal protection.” (16B C.J.S. (1985) Constitutional Law, § 777, pp. 666-667;
Meeks v. Jago (6th Cir. 1976) 548 F.2d 134, 138 [no denial of equal protection
occurred “as long as sentence was imposed according to the statute applicable at
the time of sentence”]; see Comerford v. Commonwealth of Massachusetts (1st
Cir. 1956) 233 F.2d 294, 295 [“The same situation might arise when a legislature
prospectively reduced the maximum penalty for a crime, for then a prisoner
sentenced to the maximum penalty before the effective date of the act would serve
a longer imprisonment than one sentenced to the maximum term thereafter. Yet
we are not aware of any violation of the constitutional rights of either group of
prisoners in that situation”].) The Illinois Supreme Court, for example, rejected an
analogous claim when the state approved a new comprehensive sentencing act that
took effect after defendant was sentenced but “ ‘his case ha[d] not been finally
adjudicated on appeal.’ ” (People v. Grant (Ill. 1978) 377 N.E.2d 4, 9, italics
omitted.) Grant, like defendant here, argued “that there is no rational basis for
distinguishing between persons sentenced after the effective date of the act and
those, sentenced prior to that date, whose appeals are still pending.” (Ibid.) The
Illinois Supreme Court replied, as we did in Estrada, that “the ability to elect to be
sentenced under a law enacted after the date of the commission of a crime is not a
constitutional right but a benefit conferred solely by statute. It is not
unconstitutional for the legislature to confer such benefit only prospectively,
neither is it unconstitutional for the legislature to specify ‘a classification between
groups differently situated, so long as a reasonable basis for the distinction exists.’
[Citation.] In this instance, the legislature distinguished between those defendants,
on the one hand, who had not yet been accorded any sentencing hearings prior to
the cut-off date, and those, on the other hand, whose sentences, already imposed,
would require remandments for additional sentencing hearings. We find this to be
a reasonable basis for distinction and, therefore, no constitutional denial of equal
protection.” (Ibid.; accord, State v. Ferrell (Ariz. 1980) 612 P.2d 52, 53; Fleming
v. Zant (Ga. 1989) 386 S.E.2d 339, 341 [the amendment “distinguishes between
cases that have been tried and those that have not. This classification is neither
arbitrary nor discriminatory. The legislature had to choose some effective date”];
Carter v. State (Ind. 1987) 512 N.E.2d 158, 170 [“Because Carter was charged,
tried, and sentenced before the amendment went into effect, it was not a denial of
equal protection to sentence Carter according to the statute in effect at that time”];
State ex rel. v. Ohio Adult Parole Auth. (Ohio 1997) 677 N.E.2d 347, 349; Burch
v. Tennessee Dept. of Correction (Tenn.Ct.App. 1999) 994 S.W.2d 137, 139;
Delgado v. State (Tex.App. 1995) 908 S.W.2d 317, 319; Abdo v. Commonwealth
(Va. 1977) 237 S.E.2d 900, 903-904 [“The fact that the legislature reduces the
penalty for a crime after a prisoner is sentenced, and he does not benefit from that
mitigation of punishment, does not constitute an arbitrary classification or deny
the prisoner equal protection of the law”].)
As stated above, defendant has not cited a single case to the contrary. The
closest he can come is Kapperman, supra, 11 Cal.3d 542, in which we reviewed
the constitutionality of a newly enacted provision concerning presentence custody
credit that applied only to those persons delivered to the custody of the Director of
Corrections after the effective date of the section. Kapperman, who was delivered
to the director’s custody before that date, argued successfully that this limitation
violated his right to equal protection. Before we addressed his claim, however, we
made an “[i]nitial” observation: “we point out that this case is not governed by
cases (e.g., In re Estrada, 63 Cal.2d 740, 744 []) involving the application to
previously convicted offenders of statutes lessening the punishment for a particular
offense. The Legislature properly may specify that such statutes are prospective
only, to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written. [Citation.] The People
herein do not contend that retroactive application of section 2900.5 would interfere
with the foregoing public purpose.” (Kapperman, supra, 11 Cal.3d at p. 546.)
This case, by contrast, does involve a statute lessening punishment for particular
offenses, and retroactive effect of the statute would interfere with the foregoing
public purpose.
We also find support from the State of Washington, which, like California,
has enacted a treatment-oriented program as an alternative to mere confinement,
entitled the Drug Offender Sentencing Alternative. (State v. Kane (Wash.Ct.App.
2000) 5 P.3d 741, 742.) At the time Kane pleaded guilty to his drug offense, he
was ineligible for the alternative sentence because of his prior felony convictions.
The Washington Legislature then amended the eligibility requirements prior to the
sentencing hearing, but the appellate court, in accordance with the Washington
saving statute, determined that the amendment did not apply to Kane. (Ibid.) In
rejecting Kane’s claim of an equal protection violation, the court observed that a
contrary rule would encourage sentencing delays and other manipulations “ ‘with
unfair results overall. . . . [W]e see nothing irrational in a legislative conclusion
that individuals should be punished in accordance with the sanctions in effect at
the time the offense was committed, a viewpoint encompassed by the savings
statutes themselves.’ ” (Id. at p. 746; accord, In re Pedro T., supra, 8 Cal.4th at p.
1047 [retroactive application “would provide a motive for delay and manipulation
in criminal proceedings”].) Moreover, “an amendatory statute that substitutes
treatment for time spent in prison may well require fiscal or administrative
adjustments. The Legislature may have decided that such changes should be
phased in gradually as new cases arise.” (Kane, supra, 5 P.3d at p. 746; In re
DeLong (2001) 93 Cal.App.4th 562, 569 [“Obviously, the implementation of
Proposition 36 would require that treatment programs be in place by the time
defendants were sentenced”]; see generally Baker v. Superior Court, supra, 35
Cal.3d at p. 669 [“Nothing in these cases suggests, however, that the equal
protection clause prohibits the Legislature from creating or abolishing a treatment
program prospectively”].)
These concerns apply equally to the alternative drug offender sentencing
scheme created by Proposition 36. Kapperman, like Kane, recognized as
legitimate the legislative interest “that penal laws will maintain their desired
deterrent effect by carrying out the original prescribed punishment as written.”
(Kapperman, supra, 11 Cal.3d at p. 546.) Kapperman, like Kane, also recognized
as legitimate the practical concerns associated with the transition from one
sentencing scheme to another, such as resentencings. (Id. at p. 549, fn. 8.)
Resentencing numerous defendants was plainly a result the voters sought to avoid
by according the statute prospective effect. In addition, the voters may not have
wanted to encourage defendants to file meritless appeals designed simply to
stretch out the time to finality. “[T]he Fourteenth Amendment does not forbid
statutes and statutory changes to have a beginning and thus to discriminate
between the rights of an earlier and later time.” (Sperry & Hutchinson Co. v.
Rhodes (1911) 220 U.S. 502, 505.) Therefore, defendant’s equal protection claim
must fail.
The judgment of the Court of Appeal is affirmed.




For the reasons explained below, I disagree with the majority’s conclusion
that the rule of lenity does not apply in this case. (Maj. opn., ante, at p. 9.) In my
view, when considered in its entirety, Proposition 36 may reasonably be construed
to extend to defendants whose conviction for a nonviolent drug offense was not
final as of July 1, 2001. In reaching a contrary conclusion, the majority takes an
unnecessarily narrow assessment of the electorate’s intent and in doing so fails to
fully effectuate the express purpose of the initiative. I respectfully dissent.
The question here is whether defendant may invoke the principle of In re
Estrada (1965) 63 Cal.2d 740, 745-748, providing that in the absence of a saving
clause ameliorative legislation applies retroactively to all convictions not yet final
as of the effective date. The majority identifies the requisite saving clause as
section 8, which states that “[e]xcept as otherwise provided, the provisions of this
act shall become effective July 1, 2001, and its provisions shall be applied
prospectively.” (Prop. 36, § 8,1 as approved by the voters, Gen. Elec. (Nov. 7,
2000) (Proposition 36), reprinted at 51 West’s Ann. Pen. Code (2003 supp.) foll.
§ 1210, p. 221.) Yet, the meaning of this section is hardly self-explanatory. Since
prospective application is not qualified in relation to the date of offense or finality

Hereafter, unless otherwise indicated references to section 8 are to the
uncodified version in Proposition 36.

of conviction, it lacks the specificity generally required of an effective saving
clause. (See, e.g., People v. Holland (1983) 141 Cal.App.3d 795, 797 [legislation
specified ameliorative provisions “shall apply only to offenses committed on or
after” particular date (italics omitted)] ; People v. Superior Court (Martin) (1982)
132 Cal.App.3d 658, 663 [statute specified “ ‘provisions of the bill shall not be
construed to affect any person under commitment prior to the effective date of the
bill’ ”]; Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 114 [statute
contained express provision that it applied only to offenses committed after a date
certain]; Pen. Code, § 1203.4, subd. (a) [“This subdivision shall apply to all
applications . . . filed on or after November 23, 1970”] see generally In re Estrada,
at p. 747.) Accordingly, the scope of section 8 becomes a matter of discerning the
electorate’s intent, which can only be done by considering the larger context of
Proposition 36.
The “Purpose and Intent” of Proposition 36 is set forth in section 3 of the
initiative: “The People of the State of California hereby declare their purpose and
intent in enacting this act to be as follows:
“(a) To divert from incarceration into community-based substance abuse
treatment programs nonviolent defendants, probationers and parolees charged with
simple drug possession or drug use offenses;
“(b) To halt the wasteful expenditure of hundreds of millions of dollars
each year on the incarceration—and reincarceration—of nonviolent drug users
who would be better served by community-based treatment; and
“(c) To enhance public safety by reducing drug-related crime and
preserving jails and prison cells for serious and violent offenders, and to improve
public health by reducing drug abuse and drug dependence through proven and
effective drug treatment strategies.” (Prop. 36, § 3, reprinted at 51 West’s Ann.
Pen. Code (2003 supp.) foll. § 1210, p. 221.)

Plainly, each of these goals is best served by maximizing the number of
eligible defendants. Other provisions of Proposition 36 also support an expansive
application. For example, if a defendant on probation for a nonviolent drug
possession offense as of July 1, 2001—that is, a probationer whose conviction is
already final as of the effective date—violates probation, he or she may still be
accorded the benefits of the initiative. (Pen. Code, § 1210.1, subd. (e)(3)(D).)
Even a second violation of probation will not render a defendant ineligible. (Id.,
subd. (e)(3)(E); see id., § 3063.1 [parolee eligibility]; see also Health & Saf. Code,
§§ 11999.5, 11999.6 [Prop. 36 funding cannot be used “to supplant funds from
any existing fund source or mechanism currently used to provide substance abuse
treatment”].) As the Court of Appeal in In re DeLong (2001) 93 Cal.App.4th 562,
569, observed, “In view of Proposition 36’s provisions extending it to defendants
who were already on probation or on parole at the time the initiative took effect,
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.” Given the legislative intent to remove certain nonviolent drug
offenders from the criminal justice system not only for their own benefit but for
the benefit of society as a whole through the reduction in incarceration costs and
drug-related criminal activity, similar reasoning should apply to defendants
awaiting finality of their convictions as of the effective date.
The fact that section 8 delayed the effective date of Proposition 36 almost
eight months from the time of enactment does not undermine the conclusion the
voters intended broad application. The sole reason for the postponement was
practical: time was necessary to enable a sufficient number of treatment facilities
to be licensed or certified. (See In re DeLong, supra, 93 Cal.App.4th at
pp. 569-570.) “Thus, the voters delayed the effective date to July 1, 2001, so that
treatment facilities could be in place, not out of a desire to preserve the stricter
sentencing scheme for nonviolent drug offenders for a few more months” (id. at
p. 570) or to limit unnecessarily the number of defendants eligible once the
programs became operational. A defendant whose conviction was not final as of
July 1, 2001, was still “in the system” and inclusion would not compromise the
need for time to get treatment facilities functioning by that date. (Cf. In re Pedro
T. (1994) 8 Cal.4th 1041, 1046 [consideration of practical effect supports
prospective application].)
Nor does this construction render section 8 surplusage. Given the reason
for the delayed effective date, the voters could reasonably have wanted to exclude
defendants whose convictions became final between November 7, 2000 and
July 1, 2001. Under the rule of In re Estrada, supra, 63 Cal.2d 740, these
defendants might make a claim to the initiative’s amelioration. Without facilities
fully operational, however, the difficulty of working them into the program could
have been seen as outweighing any benefit. Therefore, as to this class of
defendants the electorate designated the provisions prospective while preserving—
again, under the rule of Estrada—the benefits for defendants whose conviction
was not yet final as of July 1, 2001.
Nothing in the ballot arguments negates such a conclusion. The majority
cites a statement by the proponents of Proposition 36 that “ ‘[i]f Proposition 36
passes, nonviolent drug offenders convicted for the first or second time after
7/1/2001, will get mandatory, court-supervised treatment instead of jail.’
[Citation.]” (Maj. opn., ante, at pp. 8-9.) This single reference to the effective
date is ambiguous at best, as is the Legislative Analyst’s notation that the
provisions of Proposition 36 are “effective July 1, 2001.” (Ballot Pamp., Gen.
Elec. (Nov. 7, 2000) analysis of Prop. 36 by the Legis. Analyst, p. 23.) The
effective date had no particular significance to the arguments for or against or in
the Legislative Analyst’s explanation of the initiative’s salient changes in the law
and fiscal impact. Rather, the emphasis throughout the ballot materials was on
removing nonviolent drug offenders from the criminal justice system both to assist
them in becoming drug free and, of equal importance, to save taxpayers millions
of dollars otherwise required to incarcerate them. Moreover, “the term
‘conviction’ [or ‘convicted’] has no fixed definition and has been interpreted by
the courts of this state to have various meanings, depending upon the context in
which the word is used.” (People v. Rhoads (1990) 221 Cal.App.3d 56, 60; see
Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073-1074.) In at
least one context, decisions of this court have held a defendant has not been finally
convicted if an appeal is pending. (In re Riccardi (1920) 182 Cal. 675, 681;
People v. Treadwell (1885) 66 Cal. 400, 401.)
The majority’s insistence on adopting a narrow focus to determine the
electorate’s intent has rendered section 8 the “straightjacket” the court in Estrada
warned against (In re Estrada, supra, 63 Cal.2d at p. 746)—as this case precisely
illustrates. Defendant was convicted of violating Health and Safety Code section
11350, subdivision (a), for possessing one-quarter gram of cocaine. Because he
had several prior convictions for serious or violent felonies, he was sentenced to
25 years to life in prison. (See Pen. Code, §§ 667, subd. (e)(2)(A)(ii), 1170.12,
subd. (c)(2)(A)(ii).) The ballot argument in favor of Proposition 36 explained that
a year of drug treatment costs about $4,000 for each participant, while the yearly
cost for a state prisoner is $24,000. (Ballot Pamp., Gen. Elec. (Nov. 7, 2000)
argument in favor of Prop. 36, p. 26.) Even one year’s incarceration of defendant
will far exceed the amount taxpayers would pay to divert him from the criminal
justice system altogether. Since he will not be eligible for parole for many years,
the actual cost will likely be “the wasteful expenditure” of hundreds of thousands
of dollars for an individual “who would be better served by community-based
treatment.” (Prop. 36, § 3, subd. (b), reprinted at 51 West’s Ann. Pen. Code (2003
supp.) foll. § 1210, p. 221.) Nor is this an isolated situation. The facts of People
v. Fryman, review granted July 31, 2002, S107283, are virtually identical.
As the foregoing demonstrates, there are two reasonable interpretations of
Proposition 36 with respect to whether defendant comes within its ameliorative
provisions. Under the rule of lenity, he is entitled to the benefit of the doubt as to
which should prevail. (Ex parte Rosenheim (1890) 83 Cal. 388, 391.) This result
is all the more compelling since the majority’s construction frustrates rather than
promotes the purpose and intent of the initiative. (Cf. In re Pedro T., supra, 8
Cal.4th at p. 1046 [retroactive application would conflict with express legislative
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Floyd

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 95 Cal.App.4th 1092
Rehearing Granted


Opinion No.

Date Filed: July 21, 2003


County: Kern
Judge: Stephen P. Gildner


Attorneys for Appellant:

Conrad Petermann, under appointment by the Supreme Court, for Defendant and Appellant.

Marylou Hilberg for Tommy Lee Fryman as Amicus Curiae on behalf of Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and


Counsel who argued in Supreme Court (not intended for publication with opinion):

Conrad Petermann
8306 Wilshire Boulevard
Beverly Hills, CA 90211
(323) 653-4779

Patrick J. Whalen
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-2785


Opinion Information
Date:Docket Number:
Mon, 07/21/2003S105225

1Floyd, Andre Rene (Defendant and Appellant)
Wasco State Prison - Reception Center
Represented by Conrad Petermann
Attorney At Law
8306 Wilshire Blvd #797
Beverly Hills, CA

2The People (Plaintiff and Respondent)
Represented by Patrick J. Whalen
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

Jul 21 2003Opinion: Affirmed

Mar 19 2002Petition for review filed
  By counsel for appellant {Andre Rene Floyd}.
Mar 19 2002Record requested
Mar 21 2002Received Court of Appeal record
  one doghouse
May 1 2002Petition for Review Granted (criminal case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jun 3 2002Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Conrad Peterman is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty days from the date of this order.
Jul 2 2002Request for extension of time filed
  By appellant asking to August 2, 2002 to file appellant's Opening Brief on the Merits.
Jul 9 2002Extension of time granted
  To August 2, 2002 to file appellant's opening brief on the merits.
Jul 30 2002Opening brief on the merits filed
  By counsel for appellant {Andre Rene Floyd}.
Aug 29 2002Answer brief on the merits filed
  In Sacramento by Respondent { The People}.
Aug 30 2002Request for judicial notice filed (in non-AA proceeding)
  Respondent {The People}.
Sep 4 2002Received:
  Respondent's {The People} supplemental declaration of service.
Sep 18 2002Reply brief filed (case fully briefed)
  By appellant {Andre Rene Floyd}.
Oct 16 2002Compensation awarded counsel
  Atty Petermann
Oct 18 2002Received application to file Amicus Curiae Brief
  By counsel for {Tommy Lee Fryman} appellant in case number S107283.
Oct 21 2002Permission to file amicus curiae brief granted
  By Tommy Lee Fryman in support of Appellant. Answer is due within twenty days.
Oct 21 2002Amicus Curiae Brief filed by:
  Tommy Lee Fryman in support of Appellant {Andre Rene Floyd}. Answer is due within twenty days.
Apr 16 2003Issues ordered limited
  The parties are advised that argument shall be limited to the first two issues presented in Appellant's Petition for Review, filed March 19, 2002. (See Petn. at p. 1.)
Apr 30 2003Case ordered on calendar
  5-29-03, 9am, S.F.
May 8 2003Request for judicial notice granted
  The Attorney General's request for Judicial Notice, filed on August 29, 2002.
May 29 2003Cause argued and submitted
Jul 21 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by Baxter, J., ----- Joined by George, CJ., Kennard, Werdegar, Chin and Moreno, JJ. Dissent by Brown, J.
Aug 25 2003Remittitur issued (criminal case)
Sep 2 2003Received:
  Receipt for remittitur.
Nov 19 2003Compensation awarded counsel
  Atty Petermann

Jul 30 2002Opening brief on the merits filed
Aug 29 2002Answer brief on the merits filed
Sep 18 2002Reply brief filed (case fully briefed)
Oct 21 2002Amicus Curiae Brief filed by:
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