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Whatley v. Superior Court of San Diego County11/21/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Petitioner Kenneth Whatley pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and to misdemeanor driving a vehicle while under the influence of drugs (Veh. Code, § 23152, subd.(a)). He sought probation and diversion under Penal Code section 1210 et seq. The trial court denied the request because probation and diversion are unavailable under section 1210.1, subdivision (b)(2) for a defendant convicted in the same proceeding of a misdemeanor offense "not related to the use of drugs," and concluded that driving while under the influence of drugs is an offense not related to the use of drugs within the meaning of subdivision (b)(2). Whatley seeks a writ of mandate compelling the trial court to grant him probation and diversion under section 1210.1.
The single issue in this petition is whether section 1210.2, subdivision (b)(2) precludes probation and diversion when a defendant is convicted in the same proceeding of a drug possession offense and of misdemeanor driving while under the influence of drugs.
I. THE STATUTORY SCHEME
Section 1210 et seq. was adopted by voter approval of Proposition 36 at the November 2000 General Election. (People v. Legault (2002) 95 Cal.App.4th 178, 180.) Section 1210.1, subdivision (a) provides that, unless the defendant is disqualified from probation under subdivision (b), the trial court must grant probation with a drug treatment condition to a defendant convicted of a nonviolent drug possession offense. A nonviolent drug possession offense is defined to include unlawful possession, use or transportation for personal use of specified controlled substances, or being under the influence of a controlled substance. (§ 1210, subd. (a).)
Section 1210.1, subdivision (b) makes certain defendants ineligible for probation under subdivision (a), including:
"(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 . . . ."
The phrase "misdemeanor not related to the use of drugs" is defined in section 1210, subdivision (d) 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)."
Whatley argues the court erroneously denied him probation because driving under the influence of drugs is a misdemeanor that involves the use of drugs within the meaning of section 1210, subdivision (d), and therefore section 1210.1, subdivision (b)(2)'s ineligibility provisions do not apply to him. The People assert the trial court properly found Whatley ineligible for probation under subdivision (b)(2).
II. APPLICABLE INTERPRETIVE PRINCIPLES
The fundamental purpose of statutory construction is to determine the intent of the lawmakers and to effectuate the purpose of the law. (People v. Ledesma (1997) 16 Cal.4th 90, 95.) When a court is required to interpret a voter initiative, it applies the same principles that govern statutory construction. (Horwich v. Superior Court (1999) 21
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