Stanford Law School - Robert Crown Law Library

Filed 3/21/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S119129
v.
) Ct.App.
6
H024003
GREGORY GUZMAN,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. CC199361

The Substance Abuse and Crime Prevention Act of 2000 (Act), which the
voters of California enacted through Proposition 36, requires courts to order
probation and community-based drug treatment rather than incarceration for
certain criminal offenders who commit “ ‘nonviolent drug possession offense[s]’ ”
(NDPO’s) (Pen. Code, § 1210, subd. (a).)1 We granted review in this case to
determine whether the Act violates the right of equal protection under the federal
and state Constitutions by failing to make this probation requirement applicable to
defendants who commit NDPO’s while on probation for offenses that are not
NDPO’s (non-NDPO’s). After concluding that under the statutory language, this
requirement does not apply to such defendants, the Court of Appeal found that this
omission denies equal protection because the requirement does apply to parolees
who commit NDPO’s while on parole after completing prison terms for non-

1
All further undesignated statutory references are to the Penal Code.

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NDPO’s. (See § 3063.1, subd. (a).) To remedy this perceived constitutional
violation, the Court of Appeal construed the requirement also to apply to offenders
who commit NDPO’s while on probation for non-NDPO’s.
We agree with the Court of Appeal that under the language of the
governing statutes, the Act’s probation requirement does not apply to offenders
who commit NDPO’s while on probation for non-NDPO’s. However, we disagree
that exclusion of these offenders violates the right of equal protection. We
therefore reverse the Court of Appeal’s judgment.
FACTUAL BACKGROUND
In February 2001, defendant Gregory Guzman pleaded no contest to
inflicting corporal injury on a cohabitant (§ 273.5) and committing a misdemeanor
battery upon a peace officer engaged in his duties (§§ 242, 243, subd. (b)).
According to the probation report, during an argument, defendant struck his live-in
girlfriend, who is also the mother of his children, in the eye and in the mouth. The
first blow knocked defendant’s girlfriend back into a bedroom wall and left her
eyelid black and swollen; the second left her lip bloody and swollen. As police
attempted to handcuff defendant, he tried to break free and yelled at the officers,
calling them “fucking bitches.” Defendant also spit on one of the arresting
officers. Testing of a blood sample taken after his arrest revealed that defendant
was under the influence of methamphetamine and phenylcyclidine. After taking
defendant’s plea, the court placed him on probation for three years with the
condition (among others) that he serve eight months in county jail.
On October 16, 2001, in a separate action, defendant pleaded guilty to
possessing methamphetamine and being under the influence of a controlled
substance (Health & Saf. Code, §§ 11377, 11550). Both of these offenses qualify
under the Act as NDPO’s. (Pen. Code, § 1210.1, subd. (a).) For these
convictions, the court granted probation and ordered drug treatment under the Act.
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However, defendant was later arraigned on a petition to revoke the
probation he received in the separate case now before us, which involves only his
convictions of inflicting corporal injury and battery on a police officer. He filed a
“Motion to Compel Drug Treatment Pursuant to Proposition 36.” The trial court
found that defendant had violated probation, denied his motion for drug treatment
under the Act, and imposed the two-year mitigated prison term for his conviction
of inflicting corporal injury.
The Court of Appeal reversed. Although agreeing with the trial court that
under the statutory language, defendant is not eligible for mandatory probation
under the Act, the Court of Appeal held that this omission violates defendant’s
constitutional right of equal protection because a parolee who commits an NDPO
while on parole after serving a sentence for inflicting corporal injury is eligible for
mandatory probation under the Act. To remedy this perceived constitutional
violation, the Court of Appeal construed the Act as applying to defendant.
We then granted the People’s petition for review.
DISCUSSION
I. Defendant Is Not Entitled to Probation Under the Act’s Language.
Part of the threshold inquiry in assessing an equal protection claim is
whether the law, in fact, accords “disparate treatment” to similarly situated
persons. (People v. Raszler (1985) 169 Cal.App.3d 1160, 1166-1167; see also
National Union v. Arnold (1954) 348 U.S. 37, 41 [no equal protection violation
absent showing “that anyone comparably situated has been treated differently from
petitioner”].) Thus, the question of whether the Act denies equal protection
necessarily includes the threshold question of whether probationers like defendant
are entitled to mandatory probation under the Act. If they are, then the equal
protection claim at issue here necessarily fails.
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As we recently explained, in general terms, the Act “mandates probation
and diversion to a drug treatment program for those offenders whose illegal
conduct is confined to using, possessing, or transporting a controlled substance.
Its provisions outline ‘an alternative sentencing scheme’ for persons convicted of
certain drug offenses. [Citation.] ‘In effect, it acts as an exception to the
punishment’ provided for certain offenses involving controlled substances.
[Citation.]” (People v. Canty (2004) 32 Cal.4th 1266, 1275 (Canty).)
More specifically, the Act provides that “[n]otwithstanding any other
provision of law” and subject to specified exceptions, “any person convicted of a
nonviolent drug possession offense shall receive probation,” and “[a]s a condition
of probation . . . shall [be] require[d] [to] participat[e] in and complet[e] . . . an
appropriate drug treatment program.” (§ 1210.1, subd. (a).) Under the Act, the
offenses that qualify as NDPO’s are “the unlawful personal use, possession for
personal use, or transportation for personal use of any controlled substance
identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and
Safety Code, or the offense of being under the influence of a controlled substance
in violation of Section 11550 of the Health and Safety Code.” (Pen. Code, § 1210,
subd. (a).) Thus, in the case now before us, defendant’s convictions of inflicting
corporal injury and battery on a police officer are not NDPO’s within the meaning
of the Act and do not qualify him for mandatory probation under the Act.
The Act includes a provision that addresses probationers. (§ 1210.1, subd.
(e).) It refers only to two categories of probationers: (1) those who were already
“on probation at the effective date of th[e] [A]ct for a nonviolent drug possession
offense” (§ 1210.1, subd. (e)(3)(D), (E)); and (2) those who “receive[] probation
under subdivision (a)” of section 1210.1 (§ 1210.1, subd. (e)(3)(A), (B)) for “a
nonviolent drug possession offense.” (§ 1210.1, subd. (a).) The first time such a
probationer “violates that probation . . . by committing a nonviolent drug
4

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possession offense,” the Act’s mandatory probation provision applies unless “the
state proves by a preponderance of the evidence that the defendant poses a danger
to the safety of others.” (§ 1210.1, subd. (e)(3)(A), (D).) After a second such
violation, the mandatory probation provision applies unless “the state proves by a
preponderance of the evidence either that the defendant poses a danger to the
safety of others or is unamenable to drug treatment.” (§ 1210.1, subd. (e)(3)(B),
(E).) After a third such violation, the mandatory probation provision is
inapplicable. (§ 1210.1, subd. (e)(3)(C), (F).) It is also inapplicable if a
probationer violates the probation he received for an NDPO by committing “an
offense that is not a nonviolent drug possession offense, or by violating a non-
drug-related condition of probation.” (§ 1210.1, subd. (e)(2).) None of these
provisions applies to defendant because he was on probation for inflicting corporal
injury on a cohabitant and battery on a police officer, which are not NDPO’s.
The Act also includes a provision that addresses parolees. It provides
generally that “[n]otwithstanding any other provision of law” and subject to
specified exceptions, “parole may not be suspended or revoked for commission
of” an NDPO. (§ 3063.1, subd. (a).) Instead, a parolee committing such an
offense must “participat[e] in and complet[e] . . . an appropriate drug treatment
program.” (Ibid.) If, “during the course of drug treatment” ordered “under” this
provision, a parolee “violates parole . . . by committing” an NDPO, parole may not
be revoked unless “a preponderance of the evidence establishes that the parolee
poses a danger to the safety of others.” (§ 3063.1, subd. (d)(3)(A).) A parolee
committing a second such parole violation under these circumstances “is not
eligible for continued parole under” the Act. (§ 3063 subd. (d)(3)(B).) A parolee
also loses eligibility for continued parole under the Act by “committing an offense
other than a nonviolent drug possession offense, or by violating a non-drug-related
condition of parole.” (§ 3063.1, subd. (d)(2).) As this discussion demonstrates,
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the sections of the Act relating to probation and parole are somewhat parallel in
terms of the effect they accord to the commission of new offenses. However, as
here relevant, they differ in one important respect: the probation provision applies
by its terms only if the offender is on probation for an NDPO, whereas the parole
provision applies regardless of whether the crime that led to the parole period is an
NDPO. Of course, the parole provision does not apply to defendant because he
was not on parole when he committed the NDPO’s.
Indeed, defendant concedes that under the statutory language, “no . . .
section” extends the Act’s mandatory probation provision to probationers who,
like defendant, are on probation for a non-NDPO when they commit an NDPO.
However, he asserts that for three reasons, we should consider this omission to be
merely an “oversight” by “the authors” of Proposition 36. First, this conclusion
“is in accord with the [Proposition 36] ballot materials submitted to the voters”
and the Act’s purpose as expressly set forth in section 3 of the Act. (Ballot Pamp.,
Gen. Elec. (Nov. 7, 2000) text of Prop. 36, §3, p. 66.) Second, “the Act contains
no language that expressly excludes [defendant] from the Act’s remedial
treatment” or “demonstrates any intent to exclude individuals” like him. Third,
given that parole and probation “serve the similar purpose of rehabilitation,” an
interpretation of the Act that “allows probation to be suspended or revoked for
commission of [an NDPO] . . . while parole cannot be suspended or revoked for a
parolee under identical circumstances would be . . . absurd.” In short, defendant
argues that “in light of the Act’s purpose and the entire statutory scheme the
failure of the Act’s drafters to expressly include language indicating that probation
may not be ‘suspended or revoked’ for a probationer in defendant’s position was
an oversight.”
Like the Court of Appeal, we reject defendant’s arguments. As is evident
from the preceding discussion, in asserting that he is entitled to mandatory
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probation under the Act, defendant does not rely on proposed construction of
assertedly ambiguous statutory language. Rather, he asks that we simply add a
provision to the Act that brings him within its scope. However, as we have often
explained, “insert[ing]” additional language into a statute “violate[s] the cardinal
rule of statutory construction that courts must not add provisions to statutes.
[Citations.] This rule has been codified in California as [Code of Civil Procedure]
section 1858, which provides that a court must not ‘insert what has been omitted’
from a statute.” (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991,
998.)
It is true, of course, that we occasionally have used the concept of drafters’
error in applying statutes. However, we “do[] not lightly assume drafting error
. . . .” (People v. Robles (2000) 23 Cal.4th 1106, 1114) “Consistent with the
separation of powers doctrine (Cal. Const., art. III, § 3), we have previously
limited ourselves to relatively minor rewriting of statutes and, even then, only
resorted to that drastic tool of construction when it has been obvious that a word or
number had been erroneously used or omitted. [Citations.]” (People v. Garcia
(1999) 21 Cal.4th 1, 14 (Garcia).)2 Although we may partially rewrite a statute
“when compelled by necessity and supported by firm evidence of the drafters’ true
intent [citation], we should not do so when the statute is reasonably susceptible to
an interpretation that harmonizes all its parts without disregarding or altering any
of them.” (Id., at p. 6.) We follow this restrained approach to conform to the

2
“We speak here only of rewriting to correct drafting or clerical errors. A
different set of considerations and limitations governs the reformation of statutes
to preserve their constitutionality. [Citation.]” (Garcia, supra, 21 Cal.4th at p. 15,
fn. 9.)
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“necessary limitations on our proper role in statutory interpretation.” (Id., at p.
14.)
For several reasons, the statutory revision defendant proposes is not one we
may properly make to correct drafters’ error. First, by adopting the proposed
revision, we would not be engaging in only “relatively minor rewriting of” the
Act. (Garcia, supra, 21 Cal.4th at p. 14.) Instead, we would be adding an entirely
new provision that would greatly expand the Act’s scope. As previously
explained, insofar as probationers are concerned, the Act applies by its terms to
only two categories of probationers: (1) those who were already “on probation at
the effective date of th[e] [A]ct for a nonviolent drug possession offense” (§
1210.1, subd. (e)(3)(D), (E)); and (2) those who “receive[] probation under
subdivision (a)” of section 1210.1 (§ 1210.1, subd. (e)(3)(A), (B)) for “a
nonviolent drug possession offense.” (§ 1210.1, subd. (a).) Defendant would
have us add a third category: those who receive probation for any offense (except
perhaps a serious felony as defined by section 1192.5 or a violent felony as
defined by section 667.5). Clearly, this change would represent a major expansion
of the Act.
Second, we find no “firm evidence” that the drafters intended to include
this very large category of probationers within the Act’s scope, but through
oversight simply neglected to do so. (Garcia, supra, 21 Cal.4th at p. 6.)
Defendant’s observation that the Act “contains no language that expressly
excludes [probationers like] him from the Act’s remedial treatment” hardly
constitutes firm evidence of such an intent. (Ibid.) Moreover, defendant’s
argument in this regard ignores the fact that the Act includes a provision that
expressly addresses probationers and, as previously noted, limits the Act’s
application to those who, when the Act took effect, were on probation “for a
nonviolent drug possession offense” (§ 1210.1, subd. (e)(3)(D), (E)), and those
8

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who receive probation “under subdivision (a)” of section 1210.1 for an NDPO. (§
1210.1, subd. (e)(3)(A), (B).) Under governing principles of statutory
construction, “the expression of one thing in a statute ordinarily implies the
exclusion of other things. [Citation.]” (In re J.W. (2002) 29 Cal.4th 200, 209.)
Thus, the Act’s express inclusion only of probationers who are on probation for
NDPO’s implies the drafters’ intent to exclude probationers who, like defendant,
are on probation for non-NDPO’s. Moreover, adopting defendant’s proposed
statutory revision would violate the principle of statutory construction that
“requires us, if possible, to give effect and significance to every word and phrase
of a statute. [Citation.]” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.) By
making the Act applicable to all probationers (except perhaps those convicted of a
serious or violent felony as defined by sections 667.5 and 1192.5), defendant’s
construction would render nugatory the statutory language that makes the Act
applicable to those who, when the Act took effect, were on probation “for a
nonviolent drug possession offense” (§ 1210.1, subd. (e)(3)(D), (E)), and those
who receive probation “under subdivision (a)” of section 1210.1 for an NDPO. (§
1210.1, subd. (e)(3)(A), (B).)
Nor do we find firm evidence supporting defendant’s view either in the
ballot materials for Proposition 36 or in section 3 of the Act. The latter is an
uncodified section that “declare[s]” the voters’ “purpose and intent in enacting”
the Act. (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) text of Prop. 36, §3, p. 66
(Ballot Pamphlet); reprinted in Historical and Statutory Notes, 50D West’s Ann.
Pen. Code (2004) foll. § 1210, p. 640.) As we recently explained, the statements
of purpose and intent in this “uncodified section . . . properly may be utilized as an
aid in construing” the Act, but they “do not confer power, determine rights, or
enlarge the scope of [the] measure.” (Canty, supra, 32 Cal.4th at p. 1280.)
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Defendant’s argument is directly contrary to this statement; it invokes section 3 to
“enlarge the scope of” the Act. (Canty, supra, 32 Cal.4th at p. 1280.)
In any event, the extent to which section 3 supports defendant’s position is
arguable at best. Defendant stresses section 3’s statement of the voters’ intent to
divert from incarceration “probationers . . . charged with simple drug possession
or drug use offenses.” (Ballot Pamp., supra, text of Prop. 36, §3, subd. (a), p. 66;
reprinted in Historical and Statutory Notes, 50D West’s Ann. Pen. Code (2004)
foll. § 1210, p. 640.) He argues that “[t]his language suggests the intent to include
[him] within the Act.” (Italics added.) However, in the case before us, although
defendant violated his probation by possessing and using drugs, he was charged
with, convicted of, and on probation for inflicting corporal injury on a cohabitant
and battery on a police officer. He thus does not appear to qualify as a probationer
charged with simple drug possession or use. Any contrary “suggest[ion]”
defendant finds in the cited statement of intent does not constitute firm evidence in
support of his position. For the same reason, we find unpersuasive defendant’s
reliance on the voters’ stated intent “[t]o halt the wasteful expenditure of [money]
. . . on the incarceration . . . of nonviolent drug users . . . .” (Id., Prop. 36, §3,
subd. (b), p. 66; reprinted in Historical and Statutory Notes, 50D West’s Ann. Pen.
Code (2004) foll. § 1210, p. 640.) Again, it seems unlikely—and arguable at
best—that defendant, who in this case was convicted of inflicting corporal injury
on a cohabitant and battering a police officer, constitutes the kind of “nonviolent
drug user[]” the voters had in mind. (Ibid.) Also unavailing is defendant’s
reliance on the voters’ declared general intent “[t]o 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.” (Id., Prop.
36, §3, subd. (c), p. 66; reprinted in Historical and Statutory Notes, 50D West’s
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Ann. Pen. Code (2004) foll. § 1210, p. 640.) That these general goals might
arguably be furthered in some way by defendant’s inclusion within the Act does
not provide firm evidence that the drafters intended, but through oversight failed,
to extend the Act’s probation requirement to the very large category of
probationers to which defendant belongs.3
The ballot materials for Proposition 36 also fail to contain firm evidence in
support of this conclusion. Defendant asserts that extending the Act to offenders
who, like him, are “on probation for a felony that is neither serious nor violent”
would be “in accord with” the statement in the ballot arguments that offenders
“previously convicted of violent or serious felonies . . . will not be eligible for
[mandatory probation under the Act] . . . unless they’ve served their time and have
committed no felony crimes for five years.” (Ballot Pamp., supra, argument in
favor of Prop. 36, p. 26.) However, this statement only discussed one category of
offender excluded from the Act: those convicted of an NDPO who have prior
convictions for serious or violent felonies. Other statements in the same paragraph
explained that the Act “is strictly limited,” that it “only affects those guilty of
simple drug possession,” and that offenders are also excluded if “they’re convicted
of selling drugs” or they are “convicted of a non-drug crime along with drug
possession.” (Ibid.) Thus, viewed in context, the statement defendant cites does

3
For example, notwithstanding section 3’s reference to “drug-related crime”
(Ballot Pamp., supra, text of Prop. 36, § 3, subd. (c), p. 66; reprinted in Historical
and Statutory Notes, 50D West’s Ann. Pen. Code, supra, foll. § 1210, p. 640), the
voters made the Act’s mandatory probation provision expressly inapplicable to
“[a]ny defendant who, in addition to one or more [NDPO's], has been convicted in
the same proceeding of . . . any felony.” (§ 1210.1, subd. (b)(2).) Thus, although
defendant stresses the fact that he was under the influence of methamphetamine
and phenylcyclidine when he beat up his girlfriend, had he been convicted of using
those drugs at the same time he was convicted of the inflicting corporal injury, the
Act’s probation requirement expressly would not have applied to him.
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not support the negative inference he asks us to draw: that the voters intended to
exclude only those offenders with a prior conviction of a violent or serious felony
within the meaning of sections 667.5 or 1192.7. In short, we find no firm
evidence that the drafters intended, but through oversight failed, to extend the
Act’s mandatory probation provision to all those placed on probation for a crime
other than a serious or violent felony listed in sections 667.5 or 1192.7.
Finally, we disagree with defendant that it would be “absurd” to interpret
the Act as written, i.e., to “allow[] probation to be suspended or revoked for
commission of [an NDPO] . . . while parole cannot be suspended or revoked for a
parolee under identical circumstances.” Under California law, a period of parole,
which is mandatory from the offender’s perspective, is not part of the offender’s
prison term; it follows the prison term, which ends on the day of release on parole.
(People v. Jefferson (1999) 21 Cal.4th 86, 95-96; People v. Bravo (1987) 43
Cal.3d 600, 608 (Bravo); see also § 3000.) Thus, by definition, a parolee who
commits an NDPO while on parole has already served the full prison term
prescribed by law for the underlying non-NDPO and the criminal conduct that
produced it. In essence, where a non-NDPO conviction renders the offender
ineligible for mandatory probation under the Act and a prison term is imposed,
completion of the prison term and release on parole end that ineligibility.4 By
contrast, a period of probation, which is voluntary from the offender’s perspective,
offers the offender an “opportunity to avoid service of a state prison term.”
(Bravo, supra, 43 Cal.3d at p. 608.) By definition, “ ‘probation’ means the
suspension of the imposition or execution of a sentence and the order of

4
Additional requirements apply if the underlying conviction was for one of
the serious or violent offenses listed in sections 667.5 or 1192.7. (§ 1210.1, subd.
(b)(1).)
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conditional and revocable release in the community under the supervision of a
probation officer.” (§ 1203, subd. (a).) Thus, a period of probation operates as a
substitute for, or “in lieu of,” the prison term prescribed by law for the underlying
conviction and the criminal conduct that produced it. (Bravo, supra, 43 Cal.3d at
p. 609.) If offenders sentenced to prison for non-NDPO’s must complete their
prison terms in order to end their ineligibility for mandatory probation under the
Act, then it is not absurd to require offenders placed on probation for non-NDPO’s
to complete their probation periods—which substitute for the prison terms they
otherwise would have to serve for their underlying convictions—in order to end
their ineligibility for mandatory probation under the Act.
For the reasons stated above, we reject defendant’s argument that the
drafters’ failure to make the Act’s mandatory probation and treatment provision
applicable to probationers like defendant was an oversight that we may correct by
rewriting the Act to apply to him.
II. Defendant’s Exclusion Does Not Violate Equal Protection.
As noted above, after finding that under the statutory language, the Act’s
mandatory probation provision does not apply to defendant, the Court of Appeal
held that this omission violates defendant’s right of equal protection under the
federal and state Constitutions. (See U.S. Const. 14th Amend.; Cal. Const., art. I,
§ 7.) In reaching its conclusion, the court first found that “with respect to the
purposes of the Act probationers [like defendant] are similarly situated” to
parolees who commit NDPO’s after being imprisoned for non-NDPO’s. It next
found that the classification established by the Act’s disparate treatment of these
groups is subject to strict scrutiny because it “affects defendant’s fundamental
interest in liberty.” Finding no compelling state interest to justify the
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classification, the court then declared the Act unconstitutional insofar as it affords
different treatment to these similarly situated individuals.
“Broadly stated, equal protection of the laws means ‘that no person or class
of persons shall be denied the same protection of the laws [that] is enjoyed by
other persons or other classes in like circumstances in their lives, liberty and
property and in their pursuit of happiness.’ [Citation.]” (People v. Wutzke (2002)
28 Cal.4th 923, 943.) It does not mean, however, that “ ‘things . . . different in
fact or opinion [must] be treated in law as though they were the same.’
[Citation.]” (In re Eric J. (1979) 25 Cal.3d 522, 530, fn. 1.) “[N]either the
Fourteenth Amendment of the Constitution of the United States nor the California
Constitution [citations] precludes classification by the Legislature or requires
uniform operation of the law with respect to persons who are different.” (In re
Gary W. (1971) 5 Cal.3d 296, 303.) Thus, as previously noted, a threshold
requirement of any meritorious equal protection claim “is a showing that the state
has adopted a classification that affects two or more similarly situated groups in an
unequal manner. [Citation.]” (In re Eric J., supra, 25 Cal.3d at p. 530.) “This
initial inquiry is not whether persons are similarly situated for all purposes, but
‘whether they are similarly situated for purposes of the law challenged.’
[Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Under these
principles, to establish an equal protection violation, defendant must make a
threshold showing that, with respect to the Act’s legitimate purposes, he is
similarly situated to a parolee who commits an NDPO while on parole after
completing a prison term for a non-NDPO conviction.
Unlike the Court of Appeal, we find that defendant cannot make this
threshold showing. In concluding that defendant and a hypothetical parolee
convicted of the same non-NDPO’s are similarly situated with respect to the Act’s
purpose, the Court of Appeal declared that purpose to be “saving money by ending
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wasteful spending on incarcerating nonviolent drug offenders” and “enhanc[ing]
public health and safety by diverting these offenders to drug treatment.” However,
as we recently explained, the Act’s purpose is to require such diversion not for all
offenders who commit an NDPO, but for only “those offenders whose illegal
conduct is confined to” committing an NDPO. (Canty, supra, 32 Cal.4th at p.
1275, italics added.) This purpose is reflected in the provisions that make the
Act’s probation requirement applicable to those “convicted of a nonviolent drug
possession offense” (§ 1210.1, subd. (a)), those who “receive[] probation under
subdivision (a)” of section 1210.1 for an NDPO (§ 1210.1, subd. (e)(3)(A), (B)),
and those “on probation at the effective date of [the Act] for a nonviolent drug
possession offense.” (§ 1210.1, subd. (e)(3)(D), (E).) It is also reflected in the
provisions of the Act that make the probation requirement expressly inapplicable
to those who “ha[ve] been convicted in the same proceeding of” an NDPO and “a
misdemeanor not related to the use of drugs or any felony” (§ 1210.1, subd.
(b)(2)), and to those who, after receiving probation for an NDPO, “violate[] that
probation . . . by being arrested for an offense that is not a nonviolent drug
possession offense.” (§ 1210.1, subd. (e)(2).) Finally, this purpose is reflected in
the ballot arguments for Proposition 36, which stressed that the Act “is strictly
limited” in that it “only affects those guilty of simple drug possession.” (Ballot
Pamp., supra, argument in favor of Prop. 36, p. 26.) Thus, by committing and
being convicted of certain non-NDPO’s, offenders render themselves “ineligible”
for mandatory probation under the Act. (Canty, supra, 32 Cal.4th at p. 1273,
italics omitted.)
However, the provisions of the Act also demonstrate the voters’ intent not
to render offenders convicted of non-NDPO’s permanently ineligible for the Act’s
probation requirement. For most such offenders, ineligibility ends upon parole
release after a period of imprisonment. (§ 3063.1, subd. (a).) For those previously
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convicted of one of the serious or violent offenses listed in section 667.5 and
1192.7, ineligibility ends only if they have been released from “prison custody”
and the new NDPO “occur[s] after a period of five years in which [they] remained
free of both prison custody and the commission of an offense that results in (A) a
felony conviction other than [an NDPO], or (B) a misdemeanor conviction
involving physical injury or the threat of physical injury to another person.” (§
1210.1, subd. (b)(1).) As summarized by the ballot argument for Proposition 36,
offenders “convicted of violent or serious felonies . . . [are] not . . . eligible for the
[Act’s mandatory probation and] treatment program unless they’ve served their
time and have committed no felony crimes for five years.” (Ballot Pamp., supra,
argument in favor of Prop. 36, p. 26.)
Based on this understanding of the Act, we find that with respect to the
Act’s legitimate purposes, probationers on probation for non-NDPO’s are not
similarly situated to parolees on parole for the same crimes. It is true that for
purposes of determining their initial eligibility for mandatory probation under the
Act, such probationers and parolees are similarly situated; both have committed
and been convicted of a non-NDPO that rendered them ineligible for such
mandatory probation. However, for purposes of ending their ineligibility, they are
not similarly situated. As previously explained, parolees have had sentence
imposed and have completed the prison terms prescribed by law for their non-
NDPO. In other words, they have “served their time” in prison for the non-
NDPO’s. (Ballot Pamp., supra, argument in favor of Prop. 36, p. 26.)
Probationers have not; as explained above, they have had imposition or execution
of sentence suspended and have been given an opportunity to avoid serving their
time in prison by completing a period of conditional release in the community in
lieu of the prison terms prescribed by law for their underlying convictions.
(§ 1203, subd. (a); Bravo, supra, 43 Cal.3d at pp. 608-609.) Moreover,
16

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probationers who are still on probation have not completed the period of
conditional release that substitutes for the prison terms they otherwise would be
serving. For these reasons, we find that with respect to the Act’s legitimate
purposes as discussed above, a probationer like defendant, who commits an NDPO
while still on probation for a non-NDPO, is not similarly situated to a parolee who
commits an NDPO after completing a prison term for the non-NDPO.
Defendant’s equal protection claim therefore fails.5
CONCLUSION

For the reasons stated above, we reverse the judgment of the Court of
Appeal and remand the matter for further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.

5
Given our conclusion that defendant cannot make the threshold showing
necessary to establish his equal protection claim, we do not address the other
aspects of that claim. The analysis that supports our conclusion also casts doubt
on defendant’s summary assertion that “because the disparity” of treatment
between parolees and probationers “serves no rational purpose,” the Act also
“violates [his] due process rights.” However, we do not reach the merits of the
due process issue because it is not fairly included in the issue raised in the
People’s petition for review and defendant did not file an answer to the petition.
(See Cal. Rules of Court, rule 28.2(b).)
17

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Guzman
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 111 Cal.App.4th 57
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S119129
Date Filed: March 21, 2005
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: Leon Parrish Fox, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Jose R. Villarreal, Public Defender, and Seth Flagsberg, Deputy Public Defender, for Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Catherine
A. Rivlin, William Kuimelis, Seth K. Schalit, Bridget Billeter and Jill M. Thayer, Deputy Attorneys
General, for Plaintiff and Respondent.

David R. LaBahn; George Kennedy, Deputy District Attorney (Santa Clara); Bonnie M. Dumanis, District
Attorney (San Diego), Anthony Lovett and James Valliant, Deputy District Attorneys, for California
District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

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

Seth Flagsberg
Deputy Public Defender
120 West Mission Street
San Jose, CA 95110
(408) 299-7941

Jill M. Thayer
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5873

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Opinion Information

Date:	Docket Number:
Mon, 03/21/2005	S119129

Disposition
Mar 21 2005	Opinion: Reversed

Dockets
Sep 17 2003	Petition for review filed   by Respondent People
Sep 18 2003	Note:   Counsel's Office advised to submit certificate of word count.
Sep 22 2003	Received Court of Appeal record   file jacket/briefs/sealed envelope/transcripts
Sep 22 2003	Received:   Certificate of Compliance (Word Count) from the Attorney General (People)
Nov 12 2003	Petition for Review Granted (criminal case)   Votes: George, C.J., Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Dec 12 2003	Request for extension of time filed   for resp to file the opening brief on the merits, to 1-11-04.
Dec 18 2003	Extension of time granted   to 1-11-04 for resp to file the opening brief on the merits.
Jan 9 2004	Request for extension of time filed   By Respondent requesting a 30-day extension to and including February 10, 2004 to file Respondent's Opening Brief on the Merits.
Jan 13 2004	Extension of time granted   To February 10, 2004 to file Respondent's Opening Brief on the Merits.
Feb 10 2004	Opening brief on the merits filed   by resp
Feb 10 2004	Request for judicial notice filed (in non-AA proceeding)   by Resp
Mar 10 2004	Answer brief on the merits filed   by aplt
Mar 22 2004	Request for extension of time filed   to file respondent's reply brief on the merits to and including 4-30-2004.
Mar 25 2004	Extension of time granted   to file respondent's reply brief on the merits to and including April 30, 2004.
Apr 28 2004	Reply brief filed (case fully briefed)   by respondent (People)
May 26 2004	Received application to file Amicus Curiae Brief   from Calif. District Attorneys Association in support of resp.
Jun 16 2004	Permission to file amicus curiae brief granted   by the California District Attorneys Association in support of respondent. Answers may be filed w/in 20 days.
Jun 16 2004	Amicus curiae brief filed   by the Calif. District Attys. Assn. in support of resp.
Jul 7 2004	Response to amicus curiae brief filed   by appellant (CRC40k/UPS-ND)
Dec 8 2004	Case ordered on calendar   1/4/05 @9am - San Francisco
Dec 23 2004	Request for judicial notice granted   Respondent's request for judicial notice, filed February 10, 2004, is granted.
Jan 4 2005	Cause argued and submitted
Mar 21 2005	Opinion filed: Judgment reversed   and remanded to the court of appeal for further proceedings. Majority opinion by Chin, J. -------------------joined by George, C.J., Kennard, Baxter, Werdegar, Brown, Moreno, JJ.
Apr 22 2005	Remittitur issued (criminal case)
Apr 27 2005	Note:   case record sent to C/A 6
Jul 21 2005	Note:   received record back from CA6 (1 doghouse).

Briefs
Feb 10 2004	Opening brief on the merits filed
Mar 10 2004	Answer brief on the merits filed
Apr 28 2004	Reply brief filed (case fully briefed)
Jun 16 2004	Amicus curiae brief filed
Jul 7 2004	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website