Superior Court of the City and County of San Francisco, No. 213868, Carol Coates Yaggy, Judge. (San Francisco City and County Super. Ct. No. 213868)
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
Proposition 36*fn1 outlines " 'an alternative sentencing scheme' " for persons convicted of certain drug offenses and mandates probation in lieu of incarceration for most nonviolent drug offenders. (People v. Canty (2004) 32 Cal.4th 1266, 1275 (Canty); Pen. Code, § 1210.1, subd. (a).)*fn2 This mandate does not apply, however, to a "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." (§ 1210.1, subd. (b)(2); hereafter, § 1210.1(b)(2).) The issue presented here is the meaning of the "same proceeding" as that phrase is used in section 1210.1(b)(2).
In this case, Salvador Barros was initially charged in a single accusatory pleading with a misdemeanor violation of a protective order and felony possession of both methamphetamine and cocaine base. After arraignment, the trial court granted Barros's motion for severance of the charges based on improper joinder. Barros was later convicted by jury of the misdemeanor charge, and entered pleas to felony drug offenses. At sentencing on the drug offenses before a different judge, the court denied Barros Proposition 36 probation on the basis that the misdemeanor and the drug offense convictions occurred in the "same proceeding" within the meaning of section 1210.1(b)(2).
We hold that convictions occur in the "same proceeding" if the underlying charges are properly joined in the same accusatory pleading under section 954.*fn3 Because the sentencing judge was constrained by the earlier ruling that the charges were not properly joined, Barros was entitled to Proposition 36 probation and, accordingly, we reverse.
I. FACTUAL BACKGROUND*fn4
In 2009, a San Francisco Child Protective Services worker (D.C.) obtained a restraining order against Barros (Fam. Code, § 6218) after he brandished a firearm at her. The order required Barros to stay away from D.C. and her workplace at 170 Otis Street in San Francisco.
On June 14, 2010, Barros arrived at 170 Otis Street at about 4:00 p.m. carrying a hammer in his belt and wearing a full face mask with openings only for his eyes. He said he was there to see D.C., and a guard denied him entry. Barros became angry, spoke profanely about D.C., and kicked the door as he left the building, almost breaking the glass. When he removed his mask outside the building, the guard recognized him and reported the incident to the police.*fn5
Two days later, on June 16, 2010, police went to Barros's residential hotel to investigate the June 14 incident. Barros was in the lobby when the officers arrived and they saw him drop a piece of methamphetamine to the floor. They seized the drugs, arrested Barros, and during a subsequent search found crack cocaine in his pocket.
II. PROCEDURAL BACKGROUND
While the factual history of this matter is relatively straightforward, the procedural history is not. The defense and the prosecution both recognized from the outset that joinder of the charges would potentially disqualify Barros from receiving Proposition 36 probation, and each side maneuvered for strategic advantage on the issue. For example, the prosecutor originally brought charges against Barros sometime before October 27, 2010, but the misdemeanor charge was dismissed at an October preliminary hearing. Barros then offered "an open plea for probation" on the drug charges and sought release on his own recognizance, while the prosecution pressed for a prison sentence on the drug charges, citing the facts underlying the misdemeanor. Ultimately, the prosecutor dismissed the case and refiled all of the charges in a new accusatory pleading.
On October 27, 2010, Barros was charged by felony complaint with felony possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)); felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and misdemeanor disobedience of a court restraining order (§ 273.6, subd. (a)). It was alleged that Barros had previously served a prison term for domestic violence and that he did not remain free of a felony conviction for five years following the prison term (§ 667.5, subdivision (b)). Following the November preliminary hearing, Barros was held to answer on the felony charges and the magistrate certified the misdemeanor. An information charging all three counts was filed on November 23.
On November 29, 2010, Barros moved to sever the misdemeanor and the drug charges. He argued the charges were improperly joined because the misdemeanor was "neither an alternative way to charge the drug possession, of the same class of offenses as the drug possession, nor connected together in commission in some way with the drug possession." Barros further argued that, "[e]ven if permissibly joined, the Court should exercise its discretion to sever the stay-away violation from the drug possession charges" pursuant to section 954. He expressly urged the court to sever the charges so that he would be eligible for Proposition 36 treatment: "Not to do so would reward the clear machinations of the prosecution to try to send defendant to prison for the facts underlying the misdemeanor charge."
In opposition, the prosecutor argued joinder was proper because the offenses were connected in their commission: "Offenses are 'connected together in their commission' where there is a common element of substantial importance in their commission. [Citations.] . . . [¶] Here the police investigation regarding the stay away violations connects the two offenses together. Without the violation of the stay away order from 170 Otis Street, the officers would have had no reason to visit [Barros's] home and see [him] drop the narcotics in plain view."*fn6 The prosecutor also argued (in briefing on a related motion) that, even if Barros did not fall within an express exception in the statute, he should be deemed ineligible because he was not the type of person who was intended to benefit from Proposition 36.
On December 16, 2010, Judge Haines granted Barros's motion to sever, ruling that the offenses were "not connected. One happens on day one, they're investigating it, and they go to find him, and they find drugs on him. Completely different matters, there's nothing similar about it."*fn7 (Italics added.) Judge Haines, ...