Possession of Illegal Drugs/Proposition 36

Possession of Illegal Drugs for Personal Use (sometimes called “simple possession” or “straight possession” generally involves California Health and Safety Code Section 11350 (controlled substances) Section 11357 (marijuana, covered (here), Section 11377 (non-narcotic controlled substances or steroids)
There are two possible ways to handle a possession of drugs for personal use case: 1) Fight the case, or 2) Drug diversion/Proposition 36.

Defenses to drug possession:

In order to prove possession of drugs, the prosecution must prove that the substance seized by the police was an illegal drug. This is usually done through officer testimony and lab analysis. A good defense attorney can have an independent lab expert reexamine the substance seized if there is reason to believe that it is not, in fact, an illegal drug.

In order to prove possession of an illegal substance, the prosecution must prove three elements: knowledge, dominion and control. In other words, the prosecution must prove that you knew you had the substance; that you knew what it was; that you had physical control over it; and that you had some authority or right to control it.
Possession can be actual, where you have the item, or it can be constructive, where someone else is holding it for you.

If you choose not to fight the case, there is a diversion program available in California known as Proposition 36. This program is available for both misdemeanor and felony possession cases, but is not available in sales, transportation, or possession for sales cases. It is also not available in cases where you are charged with a non drug offense (such as theft) in conjunction with the drug charge.

If you are found to be eligible and suitable for Proposition 36, then you will enter a guilty or no contest plea, usually on a paper form which will be filed with the court clerk and read by the judge.

At that time, you will be referred to what is called a CASC center for Proposition 36 intake. At the CASC center an intake worker will interview you about your rehabilitation needs, and refer you to the actual drug program. Proposition 36 can be done on an inpatient or outpatient basis, depending on a determination of your needs by the judge and by the CASC center. Proposition 36 programs can last up to 18 months.

If you successfully complete your Proposition 36 program, then you will be sent back to court, and the Judge will allow you to withdraw your plea of guilty or no contest, and will dismiss the case.

If you violate the rules of Proposition 36, the courts have their own miniature “three strikes” system for Proposition 36. Typically on a first violation you will be reinstated but ordered to a higher level of outpatient treatment. On a second violation you will be ordered into inpatient treatment, and on a third violation you will be found not amenable to Proposition 36. If you are found not to be amenable, in the past you could be sent to prison. However, under the sentencing realignment, you would serve your sentence in the county jail.

Alternatives to Proposition 36:

Drug Diversion/California Penal Code Section 1000

California Penal Code Section 1000 provides as follows:

(a) This chapter shall apply whenever a case is before any
court upon an accusatory pleading for a violation of Section 11350,
11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code,
or subdivision (b) of Section 23222 of the Vehicle Code, or Section
11358 of the Health and Safety Code if the marijuana planted,
cultivated, harvested, dried, or processed is for personal use, or
Section 11368 of the Health and Safety Code if the narcotic drug was
secured by a fictitious prescription and is for the personal use of
the defendant and was not sold or furnished to another, or
subdivision (d) of Section 653f if the solicitation was for acts
directed to personal use only, or Section 381 or subdivision (f) of
Section 647 of the Penal Code, if for being under the influence of a
controlled substance, or Section 4060 of the Business and Professions
Code, and it appears to the prosecuting attorney that, except as
provided in subdivision (b) of Section 11357 of the Health and Safety
Code, all of the following apply to the defendant:
(1) The defendant has no conviction for any offense involving
controlled substances prior to the alleged commission of the charged
offense.
(2) The offense charged did not involve a crime of violence or
threatened violence.
(3) There is no evidence of a violation relating to narcotics or
restricted dangerous drugs other than a violation of the sections
listed in this subdivision.
(4) The defendant’s record does not indicate that probation or
parole has ever been revoked without thereafter being completed.
(5) The defendant’s record does not indicate that he or she has
successfully completed or been terminated from diversion or deferred
entry of judgment pursuant to this chapter within five years prior to
the alleged commission of the charged offense.
(6) The defendant has no prior felony conviction within five years
prior to the alleged commission of the charged offense.
(b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to (6), inclusive, of
subdivision (a) apply to the defendant. Upon the agreement of the
prosecuting attorney, law enforcement, the public defender, and the
presiding judge of the criminal division of the superior court, or a
judge designated by the presiding judge, this procedure shall be
completed as soon as possible after the initial filing of the
charges. If the defendant is found eligible, the prosecuting attorney
shall file with the court a declaration in writing or state for the
record the grounds upon which the determination is based, and shall
make this information available to the defendant and his or her
attorney. This procedure is intended to allow the court to set the
hearing for deferred entry of judgment at the arraignment. If the
defendant is found ineligible for deferred entry of judgment, the
prosecuting attorney shall file with the court a declaration in
writing or state for the record the grounds upon which the
determination is based, and shall make this information available to
the defendant and his or her attorney. The sole remedy of a defendant
who is found ineligible for deferred entry of judgment is a
postconviction appeal.
(c) All referrals for deferred entry of judgment granted by the
court pursuant to this chapter shall be made only to programs that
have been certified by the county drug program administrator pursuant
to Chapter 1.5 (commencing with Section 1211) of Title 8, or to
programs that provide services at no cost to the participant and have
been deemed by the court and the county drug program administrator
to be credible and effective. The defendant may request to be
referred to a program in any county, as long as that program meets
the criteria set forth in this subdivision.
(d) Deferred entry of judgment for a violation of Section 11368 of
the Health and Safety Code shall not prohibit any administrative
agency from taking disciplinary action against a licensee or from
denying a license. Nothing in this subdivision shall be construed to
expand or restrict the provisions of Section 1000.4.
(e) Any defendant who is participating in a program referred to in
this section may be required to undergo analysis of his or her urine
for the purpose of testing for the presence of any drug as part of
the program. However, urine analysis results shall not be admissible
as a basis for any new criminal prosecution or proceeding.

In a diversion under Penal Code Section 1000, the defendant pleads guilty, but a judgment is not entered and instead of being sentenced, the defendant is sent to drug education classes. If the classes are completed, then the guilty plea is withdrawn, and the case is dismissed. The catch is, if the defendant fails to complete classes, or is terminated, he is left with a guilty plea that cannot be withdrawn, and must seek another resolution, such as Proposition 36.

Drug Courts

Some courthouses in Los Angeles County have drug courts. In these courts, defendants are placed in a drug program directly by the court, and monitored by the drug court judge.

The “C” Program

California Health and Safety Code Section 11550(c) provides as follows:
(c) The court may, when it would be in the interest of justice,
permit any person convicted of a violation of subdivision (a)
punishable under subdivision (a) or (b) to complete a licensed drug
rehabilitation program in lieu of part or all of the imprisonment in
the county jail. As a condition of sentencing, the court may require
the offender to pay all or a portion of the drug rehabilitation
program.

If you plead guilty to Health and Safety Code Section 11550 but are not eligible for Proposition 36, and drug court is not available in your area, you can still be given a drug program under this provision.