Judges Accused of Misapplying Prop. 36 Terms

In what are believed to be the first legal challenges over how Proposition 36 is enforced in court, prosecutors in Anaheim have filed seven appeals accusing judges of authorizing drug treatment for defendants whose crimes they say are not covered by the initiative.

The Anaheim city attorney’s office contends that several Orange County judges have unlawfully used Proposition 36 in misdemeanor cases in which defendants have been arrested on suspicion of possessing drug paraphernalia, including pipes and syringes.

The successful ballot measure, which took effect this month, permits treatment for defendants convicted of processing or using drugs, but does not mention other related crimes.

The dispute, to be heard by an Orange County Superior Court appeals panel, is one of several bubbling up in courts across the state as authorities debate how broadly to interpret Proposition 36. The law is intended to provide counseling rather than incarceration for first- and second-time drug offenders.

“The law says only certain types of crimes apply,” said Anaheim Assistant City Atty. Pat Ahle. “We’re trying to uphold the law as it is stated.”

Ahle and other prosecutors said it is important to take a stand now to avoid even looser interpretations of the law later. They said the goal is to have a state appellate court clarify which offenses are eligible for counseling and which are not.

“What do you do if someone comes in with a burglary charge and says, ‘I did it while I was on drugs’ or ‘to support my drug habit?’ ” Ahle asked. “The list could be expanded for any number of scenarios someone wants to make up.”

Defense attorneys acknowledge that Proposition 36 is not as specific as they would like, but said Anaheim’s challenge goes against the spirit of the measure.

“That’s one of the flaws in the design of Proposition 36. There are ambiguities and gaps,” said Los Angeles County Public Defender Michael Judge. “But I think a prosecutor has a duty not just to enforce the law, but to act in the public’s interest. The strategy of locking people up and releasing them has been a colossal failure.”

The stakes are significant for defendants such as Daisy Greer, a 36-year-old woman arrested last year after Anaheim police said they found eight syringes in her Lincoln Avenue motel room.

Anaheim prosecutors planned to seek a jail sentence for Greer--30 days is their routine request--but Judge Richard E. Behn sentenced her July 9 to counseling under Proposition 36.

The Anaheim city attorney’s office is appealing that and six similar cases, contending that the law doesn’t cover drug paraphernalia possession.

Kevin Phillips, an Orange County deputy public defender, said Anaheim is splitting hairs.

“It’s ludicrous to say you get a program if you possess drugs, but you don’t get the program if you have paraphernalia to use them,” he said.

Not all prosecutors are taking a hard-line stance on the issue. In San Diego, city prosecutors have elected not to oppose use of the law in paraphernalia cases.

“We agree with the Anaheim city attorney that the paraphernalia cases are not included under a strict reading of the law,” said San Diego Assistant City Atty. Susan Heath. “We’ve decided to look at the spirit of the law, rather than the letter of the law.”

Other counties, including Los Angeles, said they are going to watch for the outcome of the Anaheim cases before deciding how to proceed.

The Anaheim challenges are among several controversies to develop in the first three weeks under the new drug policy.

In Los Angeles County, one judge dismissed a theft charge against a defendant over the prosecution’s objection. By doing this, the judge was able to bypass a portion of Proposition 36 that excludes counseling for defendants facing multiple offenses.

Anaheim prosecutors are also challenging the use of Proposition 36 for defendants arrested before the initiative took effect July 1. That issue has also been debated between judges and prosecutors elsewhere, including in Los Angeles County.

Officials say about 20,000 drug offenders are expected to seek treatment each year in Los Angeles County under Proposition 36. In Orange County, 3,500 to 4,500 people are expected to be treated.

In the end, prosecutors say, the interpretations will need to be hashed out by the California Supreme Court.

“We’re going to spend years and perhaps hundreds of thousands and maybe millions of taxpayers’ dollars litigating this,” said Douglas Pipes, a senior deputy district attorney in Contra Costa County.