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The California Supreme Court did little Tuesday to tip its hand in a case that examines the authority of judges to strike prior convictions to enable criminal defendants to qualify for drug treatment under Proposition 36. Three of the justices said nary a word during oral arguments in San Francisco, while two others’ questions made it difficult to determine where they stood. Only Justice Marvin Baxter and Chief Justice Ronald George seemed to stake out an identifiable position — and if they persuade the rest, prosecutors should be happy. It was prosecutors who appealed the case. They argued that Los Angeles’ Second District Court of Appeal erred last year by ruling that the terms of Prop 36 — which mandate probation and treatment for non-violent drug defendants — do not supersede judges’ century-old power under Penal Code � 1385 to dismiss an action in furtherance of justice. In In re Varnell on Habeas Corpus, S104614, Los Angeles County prosecutors had argued at the trial court level that Ronald Varnell, charged in May 2001 with possessing methamphetamine, didn’t qualify for the Prop 36 drug program because he had not remained free of custody for five years as the measure requires. Varnell was released from prison in July 1998 after serving time for assault with a deadly weapon. L.A. County Superior Court Judge Joan Comparet-Cassani felt Varnell’s minor criminal record and the non-violent nature of his new drug charge warranted dismissal of the prior strike but ruled that she lacked the power under the Penal Code to ignore the statutory requirements of Prop 36. The appeal court reversed, holding that the language and ballot history of Prop 36 “lack the requisite clear directive to eliminate a trial court’s traditional authority” to dismiss in the furtherance of justice. On Tuesday, L.A. Deputy Attorney General Marc Nolan told the Supreme Court justices that the appeal court ruling was a “double cross on the voters.” He said the five-year washout clause — aimed at people who kept their noses clean — indicated that the voters wanted defendants in drug treatment rather than prison but only if they deserved it. “That is by staying out of prison and committing no drug crimes for five years,” he said. “They could define who gets in and who gets out.” Justice Baxter seemed to agree, stating that it seemed to him that the state would want to use its limited financial resources for Prop 36 for “only the truly worthy.” Baxter also told L.A. County Deputy Public Defender Alessandro “Alex” Ricciardulli that he felt the PD’s office had problems with its case — especially with the strict language of Prop 36, which seemed to make Varnell ineligible for probation and drug treatment. Ricciardulli argued that the justices need to “read between the lines” and realize that the voters never intended to prevent someone like Varnell, who even the trial judge felt was no danger and imminently deserving of a break, from being diverted into a drug program. “Was there an intent to deprive the judge of his power to do the right thing?” Ricciardulli asked. “I think the answer is no.” But Chief Justice George asked Ricciardulli if that was even a proper question to raise when Prop 36 says nothing about judges having the authority to dismiss priors. Even Justice Joyce Kennard, who hit both sides with tough questions, asked whether the voters’ intent was clear. What is there in the specific language of Prop 36, she asked, that says trial court judges can or cannot use their discretion under 1385? “There is nothing,” Ricciardulli conceded. But, Kennard asked, is it possible that voters “implicitly” meant to tie the hands of judges dealing with defendants like Varnell? The court is expected to rule within 90 days.

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