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Judges do not have authority to ignore a defendant’s criminal history in order to qualify the person for drug treatment under Proposition 36, the California Supreme Court ruled Thursday. The unanimous opinion held that “historical facts” are sentencing factors that a judge cannot disregard by invoking the Penal Code that allows an action to be dismissed if it is “in furtherance of justice.” ‘”The only action that may be dismissed under Penal Code Section 1385, subdivision (a), is a criminal action or a part thereof,’” Justice Marvin Baxter wrote. “We have consistently interpreted ‘action’ to mean the ‘individual charges and allegations in a criminal action’ . . . and have never extended it to include mere sentencing factors.” Surprisingly, Los Angeles-based Deputy Public Defender Alex Ricciardulli was far from disappointed by the outcome. While the ruling barred his client from the drug-treatment benefits of Prop 36, he said, the justices noted that regular probation, complete with its own drug treatment program, is still available. Ricciardulli said it is the first time the state’s highest court “has said a defendant with a strike prior can be given probation.” That, Ricciardulli said, can be cited in future cases. The only drawback, he said, is that Prop 36 also lets defendants eventually expunge their record; regular probation does not. L.A.-based Deputy Attorney General Marc Nolan, who represented the state, said he’s pleased with the decision. “The holding is consistent with what the voters were told about who would be, and who would not be, eligible for Proposition 36 supervised treatment programs,” Nolan said. “And one of the groups that voters were told would not be included were unreformed, serious or violent felons.” According to the ruling, Ronald Lee Varnell was charged with possessing methamphetamine. Prop 36, the Substance Abuse and Crime Prevention Act of 2000, allows defendants charged with a non-violent drug crime to be placed in a treatment program instead of jail, but not if they have committed a serious felony or been behind bars at any time in the previous five years. Varnell had been jailed until 1998, following a 1995 conviction of assault with a deadly weapon. His trial lawyers urged L.A. County Superior Court Judge Joan Comparet-Cassani to use the state’s Penal Code to “transform his eligibility” for drug treatment under Prop 36, but she said she didn’t have that authority and sentenced Varnell to 16 months in prison. L.A.’s Second District Court of Appeal disagreed 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.” On Thursday, the Supreme Court said Comparet-Cassani got it right in the first place. “A ruling that Section 1385 could be used to disregard sentencing factors . . . would be unprecedented,” Justice Baxter wrote. He also said that Varnell has no one but himself to blame for his problems. “Had he successfully completed probation (and thereby avoided prison), he would have satisfied the terms of Proposition 36,” Baxter wrote. “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.” Defense lawyer Ricciardulli said Thursday that Judge Comparet-Cassani had resentenced Varnell after the appeal court ruling, placing him in drug treatment in accordance with Prop 36. “Now that he can’t get that, we’re going to go back and say, ‘Give him regular probation. He’s been doing well. Don’t send him back to prison.’” The case is In re Varnell, 03 C.D.O.S. 5256.

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