GARDNER v. SCHWARZENEGGER
178 Cal.App.4th 1366 (2009)
CLIFF GARDNER et al., Plaintiffs and Respondents,
v.
ARNOLD SCHWARZENEGGER et al., Defendants and Appellants.
No. A122920.
Court of Appeals of California, First District, Division One.
November 5, 2009.
Edmund G. Brown, Jr., Attorney General, Jonathan K. Renner, Assistant Attorney General, Douglas J. Woods and Kathleen A. Lynch, Deputy Attorneys General, for Defendants and Appellants.
Altshuler Berzon, Jonathan Weissglass, Stacey M. Leyton; Drug Policy Alliance, Daniel N. Abrahamson, Theshia Naidoo and Tamar Todd for Plaintiffs and Respondents.
Francisco J. Silva and Long X. Do for California Medical Association and California Psychiatric Association as Amici Curiae on behalf of Plaintiffs and Respondents.
OPINIONMARCHIANO, P. J.—
Defendants Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown, Jr., and Secretary of State Debra Bowen appeal from a judgment enjoining enforcement of Senate Bill No. 1137 (2005-2006 Reg. Sess.) sections 1 through 12 (Stats. 2006, ch. 63, §§ 1-12; hereafter Senate Bill 1137), that sought to amend the Substance Abuse and Crime Prevention Act of 2000 (hereafter Proposition 36). The issues are whether the provisions of Senate Bill 1137 challenged by plaintiffs Cliff Gardner, Drug Policy Alliance, and California Society of Addiction Medicine further the purposes of Proposition 36, and, if not, whether Senate Bill 1137 can be submitted to the voters for approval. We hold that certain of the challenged sections of Senate Bill 1137 cannot reasonably be construed to further the purposes of Proposition 36, and that Senate Bill 1137's provision for a popular vote, if any part of Senate Bill 1137 is invalidated, is itself invalid. Consistent with these conclusions, we affirm the judgment.
I. BACKGROUNDA. Proposition 36
Proposition 36, passed by the voters in the November 2000 general election, generally provides that those convicted of drug possession offenses are initially to receive probation with drug treatment, rather than incarceration. (Pen. Code, § 1210.1, subd. (a).)1 "Drug treatment" is defined to exclude drug treatment programs in a prison or jail facility. (§ 1210, subd. (b).)
Proponents of Proposition 36 argued in the Voter Information Guide to the election: "The war on drugs has failed. Nonviolent drug users are overcrowding our jails. Violent criminals are being released early. Drug treatment programs are rarely available. We pay $25,000 annually for prisoners when treatment costs only $4,000. Expanded treatment programs will reduce crime, save lives, and save taxpayers hundreds of millions." (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) summary of Prop. 36, p. 3 (Guide).) Opponents argued among other things that the proposition would "tie[] the hands of judges" and "cripple[] legitimate treatment." (Guide, supra, rebuttal to argument in favor of Prop. 36, p. 26; id., summary of Prop. 36, p. 3.)
1. Unless otherwise indicated, subsequent statutory references are to the Penal Code. Penal Code provisions of Proposition 36 are cited by section number; Penal Code provisions of Senate Bill 1137 are cited by "amended" section number.
2. This section of the Constitution provides in relevant part that the Legislature "may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval."
3. Additional named defendants in the suit, Alameda County District Attorney Thomas J. Orloff, and Alameda County Sheriff Charles C. Plummer, have not appealed from the judgment and are not parties to this appeal.
4. This provision of Senate Bill 1137 states that: "[I]f the violation does not involve the recent use of drugs as a circumstance of the violation, including, but not limited to, violations relating to failure to appear at treatment or court, noncompliance with treatment, and failure to report for drug testing, the court may impose sanctions including jail sanctions that may not exceed 48 hours of continuous custody as a tool to enhance treatment compliance and impose other changes in the terms and conditions of probation. The court shall consider, among other factors, the seriousness of the violation, previous treatment compliance, employment, education, vocational training, medical conditions, medical treatment, including narcotics replacement treatment, and including the opinion of the defendant's licensed and treating physician if immediately available and presented at the hearing, child support obligations, and family responsibilities. The court shall consider additional conditions of probation, which may include, but are not limited to, community service and supervised work programs." (Amended § 1210.1, subd. (f)(3)(A).)
5. This provision of Senate Bill 1137 states: "If one of the circumstances of the violation involves recent drug use, as well as other circumstances of violation, and the circumstance of recent drug use is demonstrated to the court by satisfactory evidence and a finding made on the record, the court may, after receiving input from treatment and probation, if available, direct the defendant to enter a licensed detoxification or residential treatment facility, and if there is no bed immediately available in such a facility, the court may order that the defendant be confined in a county jail for detoxification purposes only, if the jail offers detoxification services, for a period not to exceed 10 days. The detoxification services must provide narcotic replacement therapy for those defendants presently actually receiving narcotic replacement therapy." (Amended § 1210.1, subd. (f)(3)(A).)
6. Proposition 36 and Senate Bill 1137 have parallel provisions, which need not be separately discussed, for drug-related probation violations committed by defendants who were on probation for nonviolent drug possession offenses when the proposition took effect. (Pen. Code, § 1210.1, subd. (e)(3)(D), (E); amended § 1210.1, subd. (f)(3)(D), (E).)
7. This portion of Senate Bill 1137 provides: "If a defendant receives probation under subdivision (a), and violates that probation either by committing an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings [as] it deems appropriate to determine whether or not probation should be reinstated under this section." (Amended § 1210.1, subd. (f)(2).)
8. This portion of Senate Bill 1137 provides: "If the court reinstates the defendant on probation, the court may, after receiving input from the treatment provider and probation, if available, intensify or alter the treatment plan under subdivision (a), and impose sanctions, including jail sanctions not exceeding 30 days, [as] a tool to enhance treatment compliance." (Amended § 1210.1, subd. (f)(2).)
9. Under Proposition 36, section 1210.1, subdivision (b)(1) excludes: "Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person."
10. Senate Bill 1137 added new subdivision (c)(1) and (2) to section 1210.1, which provide: "(c)(1) Any defendant who has previously been convicted of at least three non-drug-related felonies for which the defendant has served three separate prison terms within the meaning of subdivision (b) of Section 667.5 shall be presumed eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) where the court, pursuant to the motion of the prosecutor or its own motion, finds that the defendant poses a present danger to the safety of others and would not benefit from a drug treatment program. The court shall, on the record, state its findings, [and] the reasons for those findings. [¶] (2) Any defendant who has previously been convicted of a misdemeanor or felony at least five times within the prior 30 months shall be presumed to be eligible for treatment under subdivision (a). The court may exclude such a defendant from treatment under subdivision (a) if the court, pursuant to the motion of the prosecutor, or on its own motion, finds that the defendant poses a present danger to the safety of others or would not benefit from a drug treatment program. The court shall, on the record, state its findings and the reasons for those findings." (Amended § 1210.1, subd. (c)(1), (2).)
11. Under Proposition 36, section 1210.1, subdivision (b)(3) excludes: "Any defendant who: [¶] (A) While using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, methamphetamine, or (ii) a liquid, nonliquid, plant substance, or hand-rolled cigarette, containing phencyclidine. [¶] (B) While using a firearm, is unlawfully under the influence of cocaine base, cocaine, heroin, methamphetamine or phencyclidine." Under Senate Bill 1137, amended section 1210.1, subdivision (b)(3) excludes: "Any defendant who, while armed with a deadly weapon, with the intent to use the same as a deadly weapon, unlawfully possesses or is under the influence of any controlled substance identified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code."
12. In light of our analysis in part (3) above, we do not need to reach the question of the constitutionality of Senate Bill 1137 insofar as it narrows eligibility for Proposition 36 diversion.
13. In view of these conclusions, we need not address plaintiffs' argument that section 9 is unconstitutional for the additional reason that the title of Senate Bill 1137 did not refer to conditional submission of the bill to the voters, so as to alert the legislators to this important and unusual provision of an 11th hour budget trailer bill. (See Cal. Const., art. IV, § 9 [subject of statute must be expressed in its title; a subject not expressed in the title is void]; Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1096 [240 Cal.Rptr. 569, 742 P.2d 1290] [title requirement exists to afford legislators and public reasonable notice of statute's contents].) * Retired judge of the Marin Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.