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David C. Garner
David C. Garner, Attorney
Category: Legal
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Experience:  JD with Distinction, Admitted to practice in California
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11377A misdemeanor POSS CONTR SUBS, possession drug paraphernalia

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11377A misdemeanor POSS CONTR SUBS, possession drug paraphernalia and driving on invalid lic in Riverside, Ca
am I eligible for prop 36?

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

California Prop 36, as codified in California Penal Code section 1210.1, that mandates probation (rather than jail time) for nonviolent drug related convictions. Note that it is specifically post conviction related, not before, so it depends on whether or not you're convicted of these three charges.

ScottyMacEsq :

Not all defendants convicted of a non-violent drug possession offense are eligible for probation and treatment under Prop 36. Subdivision (b) of section 1210.1 of the California Penal Code deems the following defendants ineligible for the program:



  1. Any defendant who has been incarcerated within the last five years for a serious or violent felony offense.

  2. Any defendant convicted in the same proceeding of a non-drug related misdemeanor or felony.

  3. Any defendant who, during the commission of the offense, was in possession of a firearm and, at the same time, was either in possession of or under the influence of cocaine, heroin, methamphetamine or phencyclidine (PCP).

  4. Any defendant who refuses treatment.

  5. Any defendant who has two separate drug related convictions, has participated in Prop 36 twice before, and who is found by the court by clear and convincing evidence to be unamenable to any and all forms of available drug treatment. In such cases the defendant shall be sentenced to 30 days in jail.

ScottyMacEsq :

Driving on an invalid license, although a relatively minor offense, is still a misdemeanor.

ScottyMacEsq :

As you can see in number 2, if you're convicted of that (since it's non-drug related) then Prop 36 wouldn't apply. Now all that means is that it's not mandated that you receive probation. Courts probably would still give you probation if you otherwise qualified (given the other factors and assuming that you're not disqualified because of one of the disqualifying factors listed above).

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Ok, That is somewhat comforting...9 or 10 years ago I was convicted of poss of paraph, being under the influence and since the poli

Customer:

police report stated I was driving my car when pulled over, the ASS DA claimed I was ineligible and was not offered any program. served 60 days weekend labor for my first offence

Customer:

prior to that, a dui 20 years before. I seem to be the only unfortunate offender who mandates the full penalty of law, while countless others pass thru the courts time and time again for far worse

Customer:

i guess my followup question is does the same apply for PC1000

ScottyMacEsq :

Apologies for the delay, I was out of the office when you responded last night.

ScottyMacEsq :

For PC 1000, all of the following would have to apply:

ScottyMacEsq :

(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.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Ok, one last question...

Customer:

I was convicted and sentenced for a under the influence of controlled substance and possession of paraph.

Customer:

nine or ten years ago,

Customer:

nope, it was 2005. So 8 years ago, Is there a statute of limitations or time frame that is associated with requirement (1) I believe the prosecution has enough on me to lock me up, with all you know of my charges and criminal history... just how much can a criminal defense attorney help.....back in 2005 I wasted $2500.00 on one. Will I be informed if I am eligible for diversion, or will I need a lawyer to find out?

Hello,Let me help.Because of your prior drug conviction, you will be ineligible for PC 1000. In the current case, because you are also charged with because of the license charge (I'm assuming 14601.1 or the like) you would also be inteligible for prop 36.My suggestion is to offer to plead guilty or no contest to the 11377 and the paraphernalia in exchange for a dimissal of the driving count if you can go to prop 36. If the driving count is dismissed you would be Prop 36 eligible (if not otherwise ineligible).I hope this helps.DCG
David C. Garner, Attorney
Category: Legal
Satisfied Customers: 971
Experience: JD with Distinction, Admitted to practice in California
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