Tuesday, June 29, 2004
Blakely and California's Proposition 36. I think it applies, at least partly. (Note: This post is identical to one I just posted at Criminal Appeal.)
Under Proposition 36 (Cal. Penal Code § 1210.1(a)), the statutory maximum for "[A]ny person convicted of a nonviolent drug possession offense" is probation. If the court finds certain facts true, the court may deny probation and impose a state prison term:
(b) Subdivision (a) does not apply to either of the following:Some of these facts which raise the statutory max are recidivist-based and may have Almendarez-Torres problems, but others don't and the Blakely/Apprendi analysis applies such that there there's is federal constitutional right to a jury trial.
(1) 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.
(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 or any felony.
(3) 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.
(4) Any defendant who refuses drug treatment as a condition of probation.
(5) Any defendant who (A) has two separate convictions for nonviolent drug possession offenses, (B) has participated in two separate courses of drug treatment pursuant to subdivision (a), and (C) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. Notwithstanding any other provision of law, the trial court shall sentence such defendants to 30 days in jail."