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People v. Lanas2/24/2004
Pursuant to a plea agreement, appellant Thomas Lanas pled no contest to felony possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)) and misdemeanor driving under the influence of alcohol and/or drugs (Veh.Code, § 23152, subd. (a). [FN1] On the former offense, the court imposed the upper term of three years. On the latter offense, the court ordered appellant to pay a $390 fine plus fees and assessments.
FN1. We refer to the offense of driving under the influence of alcohol and/or drugs in violation of Vehicle Code section 23152,
subdivision (a) as "DUI."
On appeal, appellant contends the court erred in failing to grant him probation pursuant to Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen.Code, § 1201 et seq.) [FN2] (Proposition 36). We will affirm.
FN2. Except as otherwise indicated, all further statutory references are to the Penal Code.
DISCUSSION [FN3]
FN3. Because the facts of the instant offenses are not relevant to the issues raised on appeal, we will forego a recitation of those facts.
Proposition 36 was adopted by the voters of California in November 2000 and, in general, mandates probation without incarceration for specified drug offenses. Under Proposition 36, a trial court must grant probation to a defendant convicted of a "nonviolent drug possession offense[ ]" unless the defendant is disqualified from probation under section 1210, subdivision (b). (§ 1210.1, subd. (a).) Persons disqualified under subdivision (b) include: "(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." (§ 1210.1, subd. (b)(2), emphasis added.) [FN4] Subdivision (d) of section 1210 defines the phrase " 'misdemeanor not related to the use of drugs' " to mean "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)." (§ 1210, subd. (d).)
FN4. A defendant also loses eligibility if he or she has a prior serious or violent felony conviction that was not "washed out" under section 1210.1, subdivision (b)(1); possesses or is under the influence of a subset of controlled substances "[w]hile using a firearm" (§ 1210.1, subd. (b)(3)); is convicted in the same proceeding of any felony (§ 1210.1, subd. (b)(2)); refuses drug treatment as a condition of probation (§ 1210.1, subd. (b)(4)), or has twice been granted diversion and treatment but is found to be unamenable to rehabilitation. (§ 1210.1, subd. (b)(5).)
In the instant case, as the parties agree, appellant was convicted of a "nonviolent drug possession offense[ ]" within the meaning of section 1201, subdivision (a), viz., possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)). Therefore, the court erred in failing to grant appellant probation under Proposition 36 unless appellant was disqualified under subdivision (b) of section 1210.1.
As indicated above, appellant was also convicted of misdemeanor DUI. Appellant contends his conviction of that offense did not render him ineligible for probation under section 1210.1 subdivision (b)(2) because DUI "involve[s] ... the ... use of drugs" within the meaning of section 1210, subdivision (d) and therefore is not "a misdemeanor not related to the use of drugs or any felony" within the meaning of section 1210.1, subdivision (b)(2). We disagree.
DUI does not involve the simple possession or use of drugs. DUI involves the additional element of impaired driving which creates a separate risk to public safety that is not present in the simple
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