June 14, 2013 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
The Los Angeles Times recently ran an editorial praising the proposed California Senate Bill 649 which reclassifies possession for personal use of certain controlled substances as wobblers rather than straight felonies. This legislation is a small but important step in rectifying in California’s draconian drug laws.
Quick background: Under California law, a “wobbler” is an offense that a prosecutor can charge as either a felony or a misdemeanor. Even if a wobbler is charged as a felony, the court has the discretion to reduce it to a misdemeanor under Penal Code 17(b). This can be done at the conclusion of a preliminary hearing, at the conclusion of trial, or upon the successful completion of probation.
Straight felonies cannot be reduced to misdemeanors. Upon the successful completion of probation, the court can dismiss a felony through a process commonly called “expungement.” But felony expungement is a misleading term and only provides limited relief.
Under current California law, possession for personal use of certain controlled substances such as methamphetamine and ecstasy are wobblers under Health and Safety Code 11377. Possession of controlled substances like heroin, cocaine, and oxycontin are straight felonies under Health and Safety Code 11350. The new law would reclassify these substances as wobblers as well. The policy behind this is that people who struggle with addiction to opiates and cocaine should be entitled to the same opportunity to earn a misdemeanor as those charged with possession of other controlled substances.
Benefit for Casual Users with No Criminal Record
This is definitely a step in the right direction. Every day, in criminal courts around California, people with no prior criminal record are charged with straight felonies for possession of tiny amounts of heroin and cocaine. These people are often casual users who do not suffer from serious addiction issues. If the case cannot be defended at trial, the only option may be to plead guilty to a felony charge and then enter a drug diversion program known as Deferred Entry of Judgment (“DEJ”), pursuant to Penal Code Section 1000. Under the DEJ program, if the defendant successfully completes a five month course of drug counseling, submits to drug testing, and stays out of trouble for 18 months, then the guilty plea is withdrawn and the case is dismissed. This allows the defendant an opportunity to avoid a criminal conviction. However, if the defendant fails to successfully complete DEJ, the judge can convict the defendant of the felony and impose any punishment allowed by law, which can include incarceration.
Of course, cocaine and heroin is unhealthy and can lead to serious addiction issues and even death, but the DEJ program can be overkill and there’s certainly no reason why many defendants should have a felony hanging over their head for 18 months.
If this law passes, the misdemeanor option is an effective way for certain defendants to earn a chance to dismiss their case without a felony guilty plea hanging over their head.
Benefits for Those Struggling With Addiction
For those suffering from addiction, The LA Times editorial argues:
It would be better to divert addicts from the criminal justice system entirely if they could be successfully treated without ever going to jail or even to court. But for many addicts, there remains a role for punishment, or at least the threat of punishment. Addiction may be a disease, but the afflicted include families, neighborhoods and, ultimately, all of society, and they all have a stake in successful rehab. When the carrot of a clean life is insufficient to keep an addict in recovery, the stick — the prospect of a criminal sentence — remains there for backup.
While I agree with this to some degree, I do not believe that those suffering from serious addiction issues are dissuaded by a felony conviction. But for those that suffer from serious addiction issues and are eligible for Prop 36, this proposed law also has an added benefit.
What’s Prop 36? Prop 36 is like DEJ except the program is more intensive, probation is longer, and results in an actual conviction with an opportunity for dismissal of the charges upon completion of the drug program. Also with Prop 36, your criminal record shows that you were convicted of a felony even though it was later dismissed and you still suffer the collateral consequences that go with being a convicted felon. It is also worth noting that people with serious or violent felonies on their criminal records are not eligible for Prop 36.
With this proposed law, even if someone is sentenced to prop 36, the court has the discretion to reduce to a misdemeanor if the program is successfully completed. If someone is not eligible for Prop 36 or fails on Prop 36 and if the court sentences the defendant to a probationary sentence of jail, there’s still the opportunity for the court to reduce the sentence to a misdemeanor through the expungement process.
Bottom line: Let’s hope the California legislature and the Governor do the right thing and pass SB 649.