Supreme Court of California Justia
Docket No. S104614
In re Varnell

Filed 6/19/03


Ct.App. 2/7 B153849
on Habeas Corpus.
Los Angeles County

Super. Ct. No. NA049231

Penal Code section 1385, subdivision (a)1 authorizes a trial court to “order
an action to be dismissed” if the dismissal is “in furtherance of justice.” Our case
law has construed section 1385 to permit a court to dismiss individual counts in
accusatory pleadings (People v. Polk (1964) 61 Cal.2d 217, 225-228), sentencing
enhancements (see People v. Thomas (1992) 4 Cal.4th 206, 210), allegations that
the defendant has suffered a prior conviction (People v. Burke (1956) 47 Cal.2d
45, 49-53), and allegations that the defendant has suffered a prior “strike”2 (People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530). In each case, our
analysis of section 1385 has presupposed the existence of “charges or allegations
in an indictment or information” to dismiss. (People v. Hernandez (2000) 22
Cal.4th 512, 523.)
In this case, we must decide whether a trial court may rely on section 1385
to do something other than dismiss the charges or allegations in a criminal

All further statutory references are to the Penal Code unless otherwise
We use the term “strike” to describe “a prior felony conviction that
qualifies a defendant for the increased punishment specified in the Three Strikes
law.” (People v. Fuhrman (1997) 16 Cal.4th 930, 932, fn. 2.)

action—i.e., whether a trial court may invoke section 1385 to disregard
“sentencing factors.”3 Here, the trial court relied on petitioner’s prior serious
felony conviction and resulting prison term to deem him ineligible for mandatory
probation and drug treatment under the Substance Abuse and Crime Prevention
Act of 2000 (Proposition 36). Proposition 36, which was adopted by the voters in
the November 2000 election, mandates probation and drug treatment for certain
nonviolent drug offenders but excludes from the program other offenders—such as
petitioner—who have previously committed serious or violent felonies and have
not remained free of prison custody for five years. (§ 1210.1, subd. (b)(1).) The
Court of Appeal held that the trial court had the power under section 1385 to
disregard petitioner’s criminal history, even though petitioner’s ineligibility was
not a charge or allegation in the information that could be dismissed, and
remanded for the trial court to reconsider its sentence. We reverse, and hold
instead that trial courts may not use section 1385 to disregard “sentencing factors”
that are not themselves required to be a charge or allegation in an indictment or
The Los Angeles County District Attorney charged petitioner with
possession of methamphetamine and alleged a prior “strike,” arising from his 1995
conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), as well as a prior
prison term enhancement (§ 667.5, subd. (b)), arising from the same conviction.

A “sentencing factor” is “a circumstance, which may be either aggravating
or mitigating in character, that supports a specific sentence within the range
authorized by the jury’s finding that the defendant is guilty of a particular
offense.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 (Apprendi);
accord, People v. Hernandez (1988) 46 Cal.3d 194, 205 [defining “sentencing

Petitioner pleaded not guilty and filed separate requests to have the trial court
dismiss the “strike” allegation, so as to avoid the “Three Strikes” law, and to
disregard “the prior or count being used to disqualify [him] from Proposition 36.”
At a hearing, petitioner conceded that he was ineligible for mandatory drug
treatment under Proposition 36, in that he had been convicted of a serious felony
and had failed to remain free of custody for the five years preceding his nonviolent
drug possession offense. He urged the court to invoke section 1385 to transform
his eligibility. When the court agreed to dismiss the alleged strike but found that
the fact of the prior conviction and resulting prison term rendered him “ineligible
in this court’s opinion for Prop[osition] 36 treatment,” petitioner entered a plea of
no contest. The court sentenced petitioner to the low term of 16 months and
awarded credits of 189 days.
Petitioner filed a notice of appeal and, very shortly thereafter, also filed a
petition for writ of habeas corpus in the Court of Appeal, seeking a declaration
that trial courts, by invoking section 1385, may disregard the eligibility factors
enacted as part of Proposition 36. The Court of Appeal issued an order to show
cause and, in a published opinion, held that trial courts could rely on section 1385
to disregard “historical facts” in determining a defendant’s eligibility under
Proposition 36. Based on its belief that the trial court had been unaware of this
discretion, the Court of Appeal granted the writ and ordered the trial court to
reconsider petitioner’s sentence.
Proposition 36 outlines an alternative sentencing scheme for those
convicted of certain narcotics offenses. In effect, it acts as an exception to the
punishment specified in an individual narcotics offense.
Section 1210.1, subdivision (a), which was added to the Penal Code by
Proposition 36, provides that “any person convicted of a nonviolent drug
possession offense shall receive probation. As a condition of probation the court
shall require participation in and completion of an appropriate drug treatment
program. . . . A court may not impose incarceration as an additional condition of
probation.” Petitioner’s current offense, possession of methamphetamine in
violation of Health and Safety Code section 11377, subdivision (a), qualifies as a
nonviolent drug possession offense. (Pen. Code, § 1210, subd. (a).)
The mandate of probation and treatment, however, does not apply to five
defined classes of defendants:
“(1) Any defendant who previously has been convicted of one or more
serious or violent felonies in violation of subdivision (c) of Section 667.5 or
Section 1192.7, unless the nonviolent drug possession offense occurred after a
period of five years in which the defendant remained free of both prison custody
and the commission of an offense that results in (A) a felony conviction other than
a nonviolent drug possession offense, or (B) a misdemeanor conviction involving
physical injury or the threat of physical injury to another person.
“(2) Any defendant who, in addition to one or more nonviolent drug
possession offenses, has been convicted in the same proceeding of a misdemeanor
not related to the use of drugs or any felony.
“(3) Any defendant who: [¶] (A) While using a firearm, unlawfully
possesses any amount of (i) a substance containing either cocaine base, cocaine,
heroin, methamphetamine, or (ii) a liquid, nonliquid, plant substance, or hand-
rolled cigarette, containing phencyclidine. [¶] (B) While using a firearm, is
unlawfully under the influence of cocaine base, cocaine, heroin,
methamphetamine, or phencyclidine.
“(4) Any defendant who refuses drug treatment as a condition of probation.
“(5) Any defendant who (A) has two separate convictions for nonviolent
drug possession offenses, (B) has participated in two separate courses of drug
treatment pursuant to subdivision (a), and (C) is found by the court, by clear and
convincing evidence, to be unamenable to any and all forms of available drug
treatment. Notwithstanding any other provision of law, the trial court shall
sentence such defendants to 30 days in jail.” (§ 1210.1, subd. (b).)
Petitioner concedes that he is statutorily ineligible for the benefits of
Proposition 36. He was convicted of assault with a deadly weapon in 1995 and
was not released from prison until 1998, less than three years before he committed
his current drug offense. But the Court of Appeal, reasoning that he could become
eligible if the trial court were to disregard these historical facts, held that section
1385 could give him what the electorate did not. We disagree with the Court of
“The only action that may be dismissed under Penal Code section 1385,
subdivision (a), is a criminal action or a part thereof.” (People v. Hernandez,
supra, 22 Cal.4th at p. 524, italics added.) We have consistently interpreted
“action” to mean the “individual charges and allegations in a criminal action” (id.
at pp. 521-522, 523; People v. Burke, supra, 47 Cal.2d at p. 50) and have never
extended it to include mere sentencing factors. Thus, our courts have refused to
permit trial courts to invoke section 1385 to dismiss sanity proceedings or a plea
of insanity (Hernandez, supra, 22 Cal.4th at pp. 522-524), to reduce a verdict of
first degree murder to second degree murder (People v. Superior Court
(Prudencio) (1927) 202 Cal. 165, 173-174, disapproved on other grounds in
People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501; cf. § 1181, subds.
6, 7); to reduce the offense of conviction to an uncharged lesser related offense
(People v. Smith (1975) 53 Cal.App.3d 655, 657-658); or to enter a judgment of
acquittal (People v. Superior Court (Jonsson) (1966) 240 Cal.App.2d 90, 92-93,
disapproved on other grounds in People v. Superior Court (Howard), supra, 69
Cal.2d at p. 501). A ruling that section 1385 could be used to disregard sentencing
factors, which similarly are not included as offenses or allegations in an
accusatory pleading, would be unprecedented.
It also would be inconsistent with our description of the effect of a section
1385 dismissal. As we have repeatedly emphasized, dismissal of a prior
conviction allegation under section 1385 “is not the equivalent of a determination
that defendant did not in fact suffer the conviction.” (People v. Burke, supra, 47
Cal.2d at p. 51; People v. Garcia (1999) 20 Cal.4th 490, 496.) “When a court
strikes prior felony conviction allegations in this way, it ‘ “does not wipe out such
prior convictions or prevent them from being considered in connection with later
convictions.” ’ ” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 508,
quoting People v. Burke, supra, 47 Cal.2d at p. 51.) Thus, while a dismissal under
section 1385 ameliorates the effect of the dismissed charge or allegation, the
underlying facts remain available for the court to use.4 Hence, the trial court’s
dismissal of the “strike” allegation in this case did not wipe out the fact of the
prior conviction and the resulting prison term that made petitioner ineligible under
subdivision (b)(1) of section 1210.1.
Petitioner concedes that dismissal of a prior conviction allegation does not
ordinarily eliminate the fact of the conviction but, quoting People v. Burke,
contends that the underlying fact may only be “considered . . . with later
convictions.” Thus, in petitioner’s view, once the trial court has dismissed the
“strike” allegation, the fact of the prior conviction can be used only in subsequent
proceedings. Petitioner misreads Burke. As we explained in People v. Garcia,
supra, 20 Cal.4th at page 499, “when a court has struck a prior conviction

This distinction accords with the text of section 1385, which authorizes a
court to order an action to be dismissed—not to order that particular facts be

allegation, it has not ‘[w]iped out’ that conviction as though the defendant had
never suffered it; rather, the conviction remains a part of the defendant’s personal
history, and a court may consider it when sentencing the defendant for other
convictions, including others in the same proceeding. With respect to the latter
point, we can discern no reason for applying Burke differently simply because two
convictions are part of a single proceeding rather than two different proceedings.”
(Italics added.)
Our conclusion that section 1385 may be used to dismiss sentencing
allegations—but not sentencing factors—finds additional support in the law
governing deferred entry of judgment, which is analogous to Proposition 36.
(People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 66 [“diversion may
also be viewed as a specialized form of probation”].) Under the deferred entry of
judgment statutes (Pen. Code, § 1000 et seq.), a defendant charged with specified
drug offenses—including violations of Health and Safety Code section 11377—
may participate in a drug education and treatment program in lieu of undergoing a
criminal prosecution. If the defendant is eligible and consents to participate, the
entry of judgment and sentencing are deferred for a period of 18 months to three
years (Pen. Code, § 1000.2), during which time the defendant is referred to an
appropriate drug rehabilitation program. If the defendant has performed
satisfactorily during the period, the criminal charges shall be dismissed. (Id., §
1000.3.) To be eligible, the defendant’s current crime must have been nonviolent;
the defendant must have had no prior narcotics convictions and no record of
probation or parole violations; there must be no evidence of any narcotics offenses
other than the ones enumerated in the statute; the defendant must not have
received diversion or deferred entry of judgment in the preceding five years; and,
as is pertinent here, the defendant must not have been convicted of a felony within
the preceding five years. (Id., § 1000, subd. (a).)
As in section 1210.1, nothing in the deferred-entry-of-judgment statutes
requires that the defendant’s ineligibility be alleged in the information or
indictment. In Sledge v. Superior Court (1974) 11 Cal.3d 70, we explained the
effect of this on the scope of judicial discretion: “[T]he statute leaves no room for
weighing the effect of the facts: if for example, the defendant has a prior narcotics
conviction, subsection (1) of subdivision (a) of the statute automatically excludes
him from the program. There is no provision here . . . for the exercise of judicial
discretion to admit an otherwise ineligible defendant to the program ‘in the
interests of justice’. . . .” (Id. at p. 74, italics added; see People v. Superior Court
(Roam) 69 Cal.App.4th 1220, 1229 & fn. 3.) Similarly, here, there is no provision
in section 1210.1 for the exercise of judicial discretion to admit an otherwise
ineligible defendant to Proposition 36’s mandatory drug treatment program.
We therefore hold that a trial court’s power to dismiss an “action” under
section 1385 extends only to charges or allegations and not to uncharged
sentencing factors, such as those that are relevant to the decision to grant or deny
probation (e.g., Cal. Rules of Court, rule 4.414(b)(1)) or to select among the
aggravated, middle, or mitigated terms (e.g., id., rule 4.421(b)(1)). Section
1210.1, like the deferred-entry-of-judgment statutes, does not require that the basis
for a defendant’s ineligibility be alleged in the accusatory pleading. In the absence
of a charge or allegation, there is nothing to order dismissed under section 1385.
The Court of Appeal thus erred in finding uncharged historical facts could be
disregarded under section 1385.
Anticipating our holding regarding the scope of section 1385, petitioner
urges us to find an implied pleading and proof requirement in section 1210.1.
“Once a defendant’s ineligibility is alleged,” he reasons, “it can then be dismissed
under section 1385, rendering the defendant eligible for Proposition 36.”
There is authority for finding an implied pleading and proof requirement in
criminal statutes. In People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero), we
recognized an implied pleading and proof requirement in the predecessor to Health
and Safety Code section 11370, which prohibited probation for any defendant
convicted of certain narcotics offenses if the defendant had previously been
convicted of a narcotics offense. The statute did not expressly require the prior
conviction establishing the defendant’s ineligibility be pleaded and proved, but we
recognized an implied pleading and proof requirement under People v. Ford
(1964) 60 Cal.2d 772, in which “we held that ‘before a defendant can properly be
sentenced to suffer the increased penalties flowing from . . . [a] finding . . . [of a
prior conviction] the fact of the prior conviction . . . must be charged in the
accusatory pleading, and if the defendant pleads not guilty thereto the charge must
be proved and the truth of the allegation determined by the jury, or by the court if
a jury is waived.’ ” (Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193, quoting
People v. Ford, supra, 60 Cal.2d at p. 794.) We concluded that “[t]he denial of
opportunity for probation involved here is equivalent to an increase in penalty, and
the principle declared in Ford should apply.” (Lo Cicero, supra, at p. 1193; see
People v. Ibarra (1963) 60 Cal.2d 460, 467-468; People v. Huffman (1977) 71
Cal.App.3d 63, 82.)
However, this case differs from Lo Cicero in one key respect: petitioner’s
prior conviction and the resulting prison term did not eliminate his opportunity to
be granted probation. Although petitioner was ineligible for probation under the
terms of section 1210.1, he was eligible for probation under section 1203,
subdivision (e).5 Thus, unlike Lo Cicero, this is not a case where the prior

Petitioner also could have received drug treatment as a condition of
probation. (Health & Saf. Code, § 11373, subd. (a).)

conviction absolutely denied a defendant the opportunity for probation. Rather,
this case more closely resembles People v. Dorsch (1992) 3 Cal.App.4th 1346
(Dorsch), in which the defendant’s prior felony convictions made him ineligible
for probation “ ‘[e]xcept in unusual cases where the interests of justice would best
be served if the person is granted probation . . . .’ ” (Id. at p. 1347, fn. 1, quoting
§ 1203, subd. (e)(4).) These prior convictions were included in the probation
report but were not alleged in the charging document. (Dorsch, supra, at p. 1349.)
Dorsch, like petitioner here, argued that the People had erred in failing to plead
and prove the priors beyond a reasonable doubt. (Ibid.) The Court of Appeal
rejected the claim and distinguished Lo Cicero on the ground that the prior
conviction there had acted as a “bar” to probation (Dorsch, supra, at p. 1349) and
had thereby eliminated the alternative to imprisonment. (Id. at p. 1350; see also
People v. Ibarra, supra, 60 Cal.2d at pp. 467-468 [suggesting that a prior
conviction should be charged in the information when it left “ ‘no alternative,
under the law as it is written, but to impose a state prison sentence’ ”]; People v.
Huffman, supra, 71 Cal.App.3d at p. 82 [“if a defendant is going to be found
ineligible for probation by reason of a prior felony conviction, it appears only just
and fair that the prosecution allege and prove the prior”].) By contrast, the
provisions of section 1203, subdivision (e)(4), which merely made probation less
likely, “are not the equivalent of an increase in penalty.” (Dorsch, supra, 3
Cal.App.4th at p. 1350.) The court also observed, in words equally applicable
here, that “when a pleading and proof requirement is intended, the Legislature
knows how to specify the requirement.” (Ibid.) For these reasons, Dorsch found
no implied pleading and proof requirement in section 1203.
We agree with Dorsch. (See generally People v. Wiley (1995) 9 Cal.4th
580, 586-587.) Petitioner’s criminal record, like the defendant’s criminal record in
Dorsch, did not absolutely preclude the opportunity for probation. It simply
rendered him unfit for probation under a particular provision. This is not the
equivalent of an increase in penalty. Accordingly, nothing in Lo Cicero required
the prosecution to plead petitioner’s ineligibility under Proposition 36. (Dorsch,
supra, 3 Cal.App.4th at p. 1350, fn. 5 [“we are not aware of any decision holding
that a failure to charge a prior conviction prohibits the court from considering the
conviction as a sentencing fact under California Rules of Court, rules 414 (criteria
affecting probation) and 421 (circumstances in aggravation)”].)6
Petitioner’s final argument is that if a pleading requirement is not implied
as a matter of statutory construction, it should be compelled as a matter of due
process. We note, at the outset, that petitioner has not identified any case holding
that a defendant is entitled as a matter of due process to notice in the accusatory
pleading of his ineligibility for less restrictive alternate punishments. And,
although there has been a flurry of recent cases outlining the scope of due process
at sentencing, none supports the birthing of a pleading requirement here. Indeed,
those cases prove just the opposite.
One line of cases, exemplified by Apprendi, supra, 530 U.S. 466, holds that
any fact that increases the penalty for a crime beyond the statutory maximum
prescribed for that crime must be submitted to a jury and proved beyond a
reasonable doubt. (Id. at p. 490; People v. Hernandez, supra, 46 Cal.3d at pp. 197,
205.) Here, since the statutory maximum for petitioner’s crime is three years in

Petitioner argues that Dorsch was wrongly decided in that it ignored section
969, the final sentence of which states: “If more than one previous conviction is
charged, the date of the judgment upon each conviction may be stated, and all
known previous convictions, whether in this State or elsewhere, must be charged.”
Petitioner is mistaken. Section 969 does not itself articulate a duty to charge prior
convictions but simply specifies, once a duty to charge a prior conviction is
imposed by some other law, that all such priors be charged. (See §§ 969a, 969.5.)


prison (Health & Saf. Code, § 11377, subd. (a)), no finding by the trial court
increased the penalty beyond the statutory maximum. (See People v.
Sengpadychith (2001) 26 Cal.4th 316, 326.) Moreover, nothing in section 1210.1
could have created an enhancement to petitioner’s sentence since, when it applies,
section 1210.1 reduces the potential punishment. (Apprendi, supra, 530 U.S. at p.
491, fn. 16 [“Core concerns animating the jury and burden-of-proof requirements”
are “absent” when a judge relies on uncharged facts to reduce a sentence below the
statutory maximum]; People v. Barasa (2002) 103 Cal.App.4th 287, 294
[Apprendi does not apply because “section 1210.1 effects a sentencing reduction,
rather than an increase in the ‘prescribed statutory maximum’ sentence”]; see
People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [Apprendi does not apply
because “ ‘section 654 is not a sentencing “enhancement.” On the contrary, it is a
sentencing “reduction” statute’ ”]; cf. People v. Hernandez, supra, 46 Cal.3d at p.
206 [imposition of the kidnapping-for-rape enhancement “increases the range
available to the court”].) Yet, even if we deemed section 1210.1 an enhancement,
we still could not impose a pleading requirement as a matter of due process, for
Apprendi does not apply to “sentence enhancement provisions that are based on a
defendant’s prior conviction.” (Sengpadychith, supra, 26 Cal.4th at p. 326;
Apprendi, supra, 530 U.S. at p. 490; Alemendarez-Torres v. United States (1998)
523 U.S. 224, 226 [due process does not require that prior conviction supporting
an enhanced sentence be alleged in the accusatory pleading].)
The other line of cases, exemplified by McMillan v. Pennsylvania (1986)
477 U.S. 79, involves mandatory minimum sentencing laws. But, since petitioner
remained eligible for probation under other provisions, section 1210.1 did not
create a mandatory minimum sentence. And even if petitioner’s criminal history
were to bar him automatically from probation, due process would not require that
the facts supporting imposition of a mandatory prison term be pleaded and proved.
(McMillan, supra, 477 U.S. at pp. 87-88; Harris v. United States (2002) 536 U.S.
545, 568 (Harris).) In barring certain defendants from the Proposition 36
program, the voters “ ‘simply took one factor that has always been considered by
sentencing courts to bear on punishment . . . and dictated the precise weight to be
given that factor.’ [Citation.] That factor need not be alleged in the indictment,
submitted to the jury, or proved beyond a reasonable doubt.” (Ibid.)
Nothing in People v. Mancebo (2002) 27 Cal.4th 735, casts doubt on the
foregoing analysis. Mancebo, like People v. Hernandez, supra, 46 Cal.3d 194,
involved the imposition of a statutory enhancement that was not pleaded in the
charging document. We explained that “in addition to the statutory requirements
that enhancement provisions be pleaded and proven, a defendant has a cognizable
due process right to fair notice of the specific sentence enhancement allegations
that will be invoked to increase punishment for his crimes.” (Mancebo, supra, 27
Cal.4th at p. 747, italics added.) Here, as we have stated, petitioner’s criminal
history did not increase his punishment above the statutory maximum. It was
merely a factor that guided the court in selecting among the punishments made
available by petitioner’s conviction of the charged offense. (Harris, supra, 536
U.S. at p. 560 (plur. opn.); id. at pp. 569-570 (conc. opn. of Breyer, J.).)
Moreover, Mancebo explicitly distinguished the grant or denial of probation from
the sentence enhancement at issue and warned that “[t]he due process fair notice
concerns in this case are simply not implicated in the same way when a trial court
exercises its broad discretion to declare a defendant probation-ineligible at
sentencing without prior notice.” (Mancebo, supra, 27 Cal.4th at p. 754.)
Thus, due process does not require the prosecutor to charge in the
information the fact of a defendant’s ineligibility for mandatory probation and
drug treatment under section 1210.1. “ ‘Where the law permits the heaviest
punishment, on a scale laid down, to be inflicted, and has merely committed to the
judge the authority to interpose its mercy and inflict a punishment of a lighter
grade, no rights of the accused are violated though in the indictment there is no
mention of mitigating circumstances.’ ” (Harris, supra, 536 U.S. at p. 561 (plur.
opn.); id. at pp. 569-570 (conc. opn. of Breyer, J.).) We therefore conclude that an
accusatory pleading need not allege petitioner’s ineligibility for mandatory
probation and treatment under section 1210.1 nor the facts underlying that
In the absence of a charge or allegation concerning petitioner’s ineligibility
under subdivision (b) of section 1210.1, there was nothing for a court, acting under
section 1385, to dismiss that could render petitioner eligible for mandatory
probation and treatment under Proposition 36. The Court of Appeal erred in
supposing otherwise.
Finally, we believe our holding best accords with the ballot summary,
argument, and analysis of Proposition 36 distributed to voters for the November 7,
2000, General Election.7 Proponents of the measure assured voters that
“Proposition 36 is strictly limited” and that individuals, such as petitioner,
“previously convicted of violent or serious felonies . . . will not be eligible for the
treatment program unless they’ve served their time and have committed no felony
crimes for five years. If convicted of a non-drug-crime along with drug
possession, they’re not eligible. If they’re convicted of selling drugs, they’re not
eligible.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36,
p. 26, italics added; see also id., analysis of Prop. 36 by Legis. Analyst, pp. 23-24.)
“Thus, the measure expressly excludes from the probation and drug treatment

We hereby grant the People’s request for judicial notice of the ballot
pamphlet materials relating to Proposition 36. (People v. Superior Court
(Romero), supra, 13 Cal.4th at p. 504, fn. 1.)

program violent and serious criminals unless certain very circumscribed
conditions are met.” (People v. Superior Court (Turner) (2002) 97 Cal.App.4th
1222, 1231.) Our ruling maintains the strict limits envisioned by the voters.
Petitioner has no one but himself to blame for his predicament. Even
nonviolent drug offenders who have previously committed serious or violent
felonies may be eligible for Proposition 36 probation and treatment if, during the
relevant five-year period, they have remained free of prison custody and have not
committed certain other felonies or misdemeanors. (§ 1210.1, subd. (b)(1).)
Indeed, this petitioner was originally sentenced to probation for his 1995
conviction for assault with a deadly weapon. Had he successfully completed
probation (and thereby avoided prison), he would have satisfied the terms of
Proposition 36. That petitioner instead chose to violate probation in that earlier
case, was only then sentenced to prison, and now has committed a new offense
less than five years after his release, places him in the narrow category of persons
the voters have deemed ineligible for this special benefit. We perceive no
unfairness in enforcing the eligibility criteria as written.
The judgment of the Court of Appeal is reversed.



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

Name of Opinion In re Varnell

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

95 Cal.App.4th 205
Rehearing Granted


Opinion No.

Date Filed: June 19, 2003


County: Los Angeles
Judge: Joan Comparet-Cassani


Attorneys for Appellant:

Michael P. Judge, Public Defender, Albert J. Menaster, Alice McVicker and Alex Ricciardulli, Deputy
Public Defenders, for Petitioner Ronald Lee Varnell.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Marc E. Turchin and Marc J. Nolan, Deputy Attorneys General, for
Respondent the People.

Steve Cooley, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, and
Phyllis C. Asayama, Deputy District Attorney, for California District Attorneys Association as Amicus
Curiae on behalf of Respondent the People.


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

Alex Ricciardulli
Deputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, CA 90012
(213) 974-3002

Marc J. Nolan
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2255


Opinion Information
Date:Docket Number:
Thu, 06/19/2003S104614

1The People (Non-Title Respondent)
Represented by Marc J. Nolan
Office of Attorney General
300 S Spring Street, 5th Floor
Los Angeles, CA

2Varnell, Ronald Lee (Petitioner)
Represented by Alex Ricciardulli
Office Of Public Defender
320 W Temple Street, Suite 590
Los Angeles, CA

3California District Attorneys Association (Amicus curiae)
Represented by Phyllis Chiemi Asayama
Office of the Disitrict Attorney
320 West Temple Street, Suite 540
Los Angeles, CA

Jun 19 2003Opinion: Reversed

Feb 25 2002Petition for review filed
  respondent People
Feb 26 2002Received Court of Appeal record
  1 envleope [being sent o/n w/petn]
Apr 16 2002Time extended to grant or deny review
  to and including May 24, 2002.
May 1 2002Petition for Review Granted (criminal case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
May 23 2002Request for extension of time filed
  Respondent asking until July 1, 2002 to file opening brief on the merits
May 28 2002Extension of time granted
  To July 1, 2002 to file Respondent's Opening Brief on the Merits.
Jun 27 2002Opening brief on the merits filed
Jun 27 2002Request for judicial notice filed (in non-AA proceeding)
Jul 23 2002Answer brief on the merits filed
  petitioner Ronald L. Varnell
Jul 30 2002Request for extension of time filed
  counsel for respondent, L.A.AG.for a single 18-day extension of time to file reply brief.
Aug 14 2002Extension of time granted
  To August 30, 2002 to file respondent's reply brief on the merits.
Aug 30 2002Reply brief filed (case fully briefed)
  by Attorney General for respondent. (filed in LA)
Sep 27 2002Received application to file amicus curiae brief; with brief
  California District Attoorneys Association [[[[ supports respondent ]]]]
Oct 11 2002Permission to file amicus curiae brief granted
  California District Attorneys Association in support of respondent {The People}. Answer is due within twenty days.
Oct 11 2002Amicus Curiae Brief filed by:
  California District Attorneys Asssociation in support of Respondent {The People}. Answer is due within twenty days.
Apr 9 2003Case ordered on calendar
  5-6-03, 9am, S.F.
May 6 2003Cause argued and submitted
Jun 19 2003Opinion filed: Judgment reversed
  Majority Opinion by Baxter, J., ------ Joined by George, CJ., Kennard, Werdegar, Chin, Brown and Moreno, JJ.
Jul 29 2003Remittitur issued (criminal case)
Aug 4 2003Received document entitled:
  Receipt for remittitur from CA2/7

Jun 27 2002Opening brief on the merits filed
Jul 23 2002Answer brief on the merits filed
Aug 30 2002Reply brief filed (case fully briefed)
Oct 11 2002Amicus Curiae Brief filed by:
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website