Pasadena Criminal Attorney

Sharen Ghatan- Lead Attorney
Over 20 Years of Experience Practicing Criminal Defense

Free Consultation

Prop 36

Any drug crime, even a simple possession offense, can attract severe penalties upon conviction, including lengthy jail time. Fortunately, it is possible to obtain a lenient and lighter sentence by participating in a court-approved drug treatment program under Proposition (Prop) 36.

Prop 36 is a sentencing alternative you can consider, especially if you have an addiction problem you want help overcoming to live a productive and healthier life. If you have a conviction for a qualifying drug charge, the Pasadena Criminal Attorney team will help you obtain favorable sentencing, including Prop 36 alternative sentencing, to avoid jail time.

We will thoroughly examine your case to determine whether this alternative sentencing will apply to your unique drug charge conviction and allow you to receive the necessary drug treatment and rehabilitative services.

Our attorneys will prepare mitigating arguments to convince the judge you are an excellent candidate for alternative sentencing under Prop 36 to avoid the possible detrimental consequences of incarceration.

Understanding Prop 36 and How it Works

Proposition 36, also known as "Prop 36," has been in effect for over a decade and allows eligible defendants to enroll in a drug treatment program instead of serving jail time.

Defined under Penal Code sections 1210-1210.1 and 3063.1, Prop 36 specifically allows first-time and second-time defendants guilty of a non-violent drug offense to receive drug treatment instead of jail time.

This alternative probationary sentence or drug treatment can last up to twelve (12) months, depending on your case facts. Depending on your unique treatment needs, the court could extend this probation period for two (2) more periods of six (6) months each, if necessary.

According to PC 1210.1(d), your convictions can be expunged and dismissed when you complete the court-approved drug diversion program as required without violating the set conditions. For the sake of Prop 36, a court-approved diversion or treatment program is any drug treatment plan that offers one or all of the services listed below:

  • Detoxification services
  • Aftercare services
  • Outpatient services
  • Residential treatment
  • Drug education

It is worth mentioning that the drug treatment programs under Proposition 36 differ from the rehabilitation services offered by jails and detention facilities. The primary purpose of Prop 36 is to give eligible defendants a chance to participate in rehabilitative services instead of serving time in legal custody for their treatable addictions.

Apart from offering hope to defendants guilty of non-violent simple drug offenses, Prop 36 also reduces congestion in jail, saving the government a significant amount of money.

Definition of Non-Violent Drug Possession Offense Under Proposition 36

As previously stated, Prop 36 is a drug diversion program you can consider when the court finds you guilty of a qualifying non-violent simple drug possession charge to avoid the possible detrimental consequences of a jail sentence. According to this statute, non-violent drug possession crimes include unlawfully:

  • Transporting or having any controlled substance in your possession for recreational purposes or personal use
  • Using or being impaired by any drug substance mentioned under the Controlled Substance Act (CSA)

Some of the most common controlled drug substances associated with non-violent drug possession crimes include:

  • Peyote
  • Cocaine
  • Marijuana
  • Ecstasy
  • Ketamine
  • Heroin
  • Methamphetamine "meth"
  • Prescription drugs like codeine and Vicodin
  • Hallucinogenic substances, for example, phencyclidine (PCP)

Examples of Common Eligible Non-Violent Simple Drug Possession Charges Under Proposition 36

Generally, several simple drug possession charges could make you qualify for a drug treatment program provided by Prop 36. Below are common qualifying simple drug possession crimes:

Possession of a Controlled Drug Substance              

Health and Safety Code 11350(a) makes it unlawful to have any controlled drug substance in your possession, including prescription drugs like Vicodin. The prosecutor will have a legal evidentiary burden to prove the following five facts in front of a judge or jury to convict you of HS 11351 violation:

  • You had a controlled drug substance in your possession
  • You did not have a doctor's prescription to use the drug substance
  • You were aware of the drug substance's presence
  • You were aware of the drug substance's nature as an unlawful or controlled substance
  • The alleged drug substance's amount was usable

Since this offense is prosecutable as a misdemeanor, as a first-time offender, you should expect the following potential penalties upon conviction:

  • A fine of not more than $1,000
  • Up to one (1) year maximum sentence in jail
  • Misdemeanor probation

Possession of Marijuana as a Minor

While adults aged 21 and over can legally possess and buy up to an ounce (28.5 grams), having any marijuana in your possession is unlawful when you are below this age limit unless you have a valid prescription. Specifically, HS 11357 (b) makes it a crime for a person under 21 to have less than an ounce of marijuana in his/her possession.

Since this offense is prosecutable as an infraction, a conviction could make you pay a fine not exceeding $1,000 if it is your first-time offense and you are eighteen (18) years of age or older. However, if the marijuana you had in your possession weighed above the legal limit of 28.5 grams, a conviction will attract the following penalties under HS 11257 (c):

  • Not more than six months of jail time
  • Three years of probation
  • $500 maximum fine

It is important to note that if you are under 18 or had marijuana on the grounds of an open school, the penalties you will likely face upon conviction will be different.

Being Under the Influence of a Controlled Drug Substance

According to HS 11550, being under the influence of or intoxicated by a controlled drug substance without a valid doctor's prescription is a misdemeanor crime. To convict you for an HS 11550 violation, the prosecutor must prove the following two elements:

  • You did use a controlled drug substance willingly
  • You were under the influenced or intoxicated by this drug willingly

If the prosecutor cannot identify the specific drug substance that had you impaired, you will not be guilty of this charge. While it is a misdemeanor offense, a conviction for HS 11550 violation could carry a jail time of not less than a year.

Fortunately, these offenses could qualify you for a drug diversion program under Proposition 36 to receive alternative probationary sentencing instead of incarceration upon conviction. Hiring an attorney will help if you want to know whether your drug charge conviction would qualify you for the Prop 36 diversion program.

Generally speaking, if you are guilty of a manufacturing or sales-related drug offense, you will be ineligible to participate in Prop 36 alternative sentencing. That is true even if you are a first-time offender and the offense is non-violent. Some of these offenses include:

  • Possession of an unlawful or controlled drug substance for sale under HS 11351
  • Transporting or selling marijuana under HS 11360
  • Transporting or selling a controlled drug substance under HS 11352
  • Possession of marijuana or cannabis for sale under HS 11359

Convictions involving drug possession while imprisoned will also disqualify you from participating in drug treatment and rehabilitation services provided by Prop 36.

Additional Factors That Could Make You Qualify for Prop 36 Drug Treatment

Not every defendant with a qualifying drug possession offense is eligible for Prop 36's alternative probationary sentencing. Apart from your drug charge conviction being eligible for Prop 36 alternative sentencing, you must also be eligible as the defendant. Below are additional factors that can disqualify you from participating in Prop 36 alternative sentencing:

You Have Simultaneous Convictions for a Non-Drug-Related Felony or Misdemeanor Crime

If the court finds you guilty of an eligible non-violent simple drug possession charge and a non-drug-related felony or misdemeanor charge simultaneously, you will be ineligible for alternative sentencing under Prop 36.

For the sake of this statute, a "non-drug-related crime" is any offense that does not entail or involve the following:

  • Use or possession of unlawful drugs or paraphernalia
  • Being present at a location or place where you know there is the use of unlawful drugs
  • Refusing to abide by your legal duties to register with local law enforcement authorities as a drug offender or
  • Any other activity that resembles simple drug use or possession crime

You Have a Record of "Strike" Convictions

Another factor that can make you ineligible for a diversion program under Prop 36 is a record of "strike" convictions. If you have a conviction for a violent felony that counts as a "strike" under the three strikes law in your criminal record, you will not qualify for Prop 36 probationary sentencing.

Below are examples of serious or violent felonies that qualify as a "strike" under the three strikes law (Penal Code (PC) 667):

  • Robbery
  • Carjacking
  • Kidnapping
  • Murder
  • Arson

If you have a prior conviction for any of the above felonies, you will be ineligible for alternative probationary sentencing under Prop 36 unless your attorney can prove that:

  • You obtained a jail release for the felony conviction five years before a charge for the current eligible simple drug possession crime and
  • Were guilty of either a misdemeanor offense that involved the threat of physical injury or actual injury of another person or any felony other than a non-violent simple drug possession offense

You Had to Use a Firearm in Furtherance of the Non-Violent Drug Possession Crime

Having a gun in your possession in furtherance of a non-violent drug possession crime is an aggravating issue that makes your case severe, regardless of whether or not you had the criminal intent to use it.

Hence, if you had to use a gun or any other dangerous weapon to further the non-violent drug possession crime, you could be ineligible for Prop 36 probationary sentencing upon conviction.

You Declined or Refused a Drug Rehabilitation Program as Part of Your Probationary Sentence

When the court gives you a probationary sentence, and you fail or refuse to attend the necessary treatment program as part of the probation's requirements, it shows you are unready to change or become rehabilitated.

Therefore, your refusal to enroll in a drug treatment session will make you ineligible for this alternative sentencing since Prop 36 is for defendants willing to take rehabilitation services for their drug addictions.

You Have Already Participated in Prop 36 Probationary Sentencing Twice

The judge will not give you another round of Prop 36 probationary sentencing if you currently have two (2) separate past convictions for non-violent drug possession charges and:

  • For both of these convictions, the court sentenced you under Prop 36
  • The court is certain you will not benefit from any additional drug treatment

All these factors will help the judge determine whether you are an excellent candidate for Prop 36 probationary sentencing.

Conditions You Must Meet to Receive an Alternative Sentencing Under Prop 36

To be eligible for Prop 36 alternative probationary sentencing, you must satisfy one of the conditions listed below:

  • Enter a "guilty" or "no contest" plea to any qualifying non-violent drug crime
  • Have a guilty verdict or conviction for a similar crime following a bench or jury trial judgment
  • Be a parolee (an individual who is out of jail on parole or probation) and while on your parole, you either commit a simple drug possession crime or violate a critical drug-related requirement of your probation

If you are eligible for a probationary sentence and relevant drug treatment plan under Prop 36, the court could require you to abide by the following conditions, if necessary:

  • Attend a counseling session
  • Enroll in a vocational training program
  • Perform community service

Unless you fail to abide by the rules and conditions of your parole, the judge cannot sentence you to prison time as a condition for your Prop 36 probationary sentencing.

Consequences of Violating Terms of Your Prop 36 Probationary Sentencing

If the drug treatment services provider or probation officer determines you are unamenable to the drug treatment options, he/she will inform the court to terminate or revoke your parole. The probation officer could conclude that you are unamenable to the diversion program when you violate the conditions of your probation.

To determine whether or not the probation violation allegations are true, the court will hold a hearing to listen to your defense arguments. When determining whether or not you are an excellent candidate for the drug treatment and the offered rehabilitative services under Prop 36, the judge will consider the factors listed below:

  • The severity of the probation violation allegations
  • Whether or not you repeatedly did violate the probation's terms and requirements in a way that hinders your chances of benefiting from the drug treatment program
  • Whether you continuously and repeatedly refused court offers to enter this alternative sentencing

If the judge believes you will benefit from the diversion program after listening to your attorney's mitigating arguments, he/she could reinstate your Prop 36 probationary sentence. In that case, he/she could decide to reinstate or modify your drug treatment plan and other conditions he/she considers necessary to help you become a productive and law-abiding citizen.

To encourage any future adherence to court-ordered drug treatment or diversion programs, the judge could sentence you to jail time as a punishment. The court could send you to jail for no more than forty-eight (48) hours as a penalty for a first-time violation.

Conversely, when the judge finds the allegations are true, or perhaps it is your third-time violation, he/she could revoke your Prop 36 probation and drug treatment. Then, he/she will sentence you to the maximum jail time required for the underlying drug charge conviction.

What to Expect Once You Complete Your Prop 36 Sentencing

If you are an excellent candidate for Prop 36 sentencing, you should be ready to comply with the required terms and conditions for the maximum period required by the court. Once you successfully complete your Prop 36 alternative sentencing and other required conditions, the court presiding over your case will allow you to file an expungement petition to dismiss your case.

Completing your Prop 36 sentencing "successfully" means you did not violate any instruction or requirement of the court and the treatment provider. Success, in this case, also means you are ready to become a law-abiding and productive citizen.

According to PC 1203.4, an expungement typically allows eligible defendants to withdraw a "no contest" or "guilty" plea and reenter a new plea of "not guilty." One of the main benefits of an expungement is that it will release you from most disabilities and negative consequences resulting from your drug charge conviction.

For instance, after obtaining an expungement, you do not have to disclose to a potential employer that you have a criminal record, increasing your chances of securing reliable employment. After obtaining an expungement, your defense attorney can also help you petition the court to seal your criminal record under PC 851.8.

If you are eligible to seal your arrest and a criminal record under this statute, you can confidently say "no" when someone asks whether or not you have an arrest record, including:

  • A potential employer
  • Licensing agencies
  • Landlords

Other Alternative Drug Diversion Programs You Can Consider

If you do not meet the eligibility requirements for Prop 36 sentencing, or perhaps you do not like the guidelines that come with Prop 36 sentencing, all hope is not lost. Below are two other alternative sentencing options you could qualify to avoid the possible jail time for a drug charge.

  1. Pretrial Drug Diversion Under PC 1000

Like Proposition 36, PC 1000 allows eligible defendants with non-violent drug charges to avoid incarceration by participating in a court-approved drug rehabilitation program. When determining whether or not you qualify for a pretrial diversion program under PC 1000, the judge will consider the following factors:

  • Your criminal history
  • The nature and facts of the underlying drug charge

Since every defendant's needs are different, the court will consider the following factors when determining the appropriate treatment for you if you are eligible for a drug diversion program under PC 1000:

  • Your age
  • Your criminal history
  • Education
  • Employment history
  • Past drug history
  • Family and community ties

Unlike Prop 36, when you complete the program successfully and adhere to the set conditions, the court should dismiss your drug case automatically.

  1. Drug Court

Another form of diversion program you can consider is drug court. Like Proposition 36 and PC 1000, the judge will dismiss your drug charge upon successfully completing the court-ordered drug diversion program.

One of the advantages of participating in a drug court diversion program is that it will allow you to enroll in or participate in a drug treatment or rehabilitation program without entering a "no contest" or "guilty" plea. Generally, the drug treatment to expect when you opt for this diversion program could include any of the following:

  • Therapy
  • Vocational and educational counseling
  • Drug testing
  • A graduated plan or system of rewards and penalties
  • Close supervision or monitoring by a court-appointed officer

Generally speaking, hiring an attorney is a decision you cannot regret if you have a drug charge or conviction and want to know whether you could be eligible for a drug diversion program to avoid a possible jail term. Participating in a drug diversion program under Prop 36 has several benefits, but not every defendant is eligible for this alternative sentencing option.

Your attorney will examine the specifics and facts of your specific drug charge to determine the best diversion program you can participate in to avoid incarceration and the other negative consequences of a criminal record.

Find a Pasadena Drug Defense Attorney Near Me

If you have a drug addiction, you could benefit from the rehabilitative and drug treatment services offered by Prop 36 to avoid spending time in jail for a drug charge conviction. At Pasadena Criminal Attorney, we can review your unique drug charge and prepare mitigating arguments to help you convince the court that you are an excellent candidate for this alternative sentencing.

Call us at 626-689-2277 to discuss your case with our dedicated attorneys. Our experienced attorneys can help you stay out of jail by increasing your chances of qualifying for Prop 36 sentencing.

How Can We Help? 626-689-2277 

Charged With a Crime?

Call us now to assess your charges and explain the difference a criminal attorney can make on the results of your case