Moore

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Brian R. Means, Supervising Deputy Attorney General, and Julia Bancroft, Deputy Attorney General, for Real Party in Interest.

NICHOLSON, Acting P.J.

Petitioner Paul Roger Moore seeks a writ of mandate, contending he is eligible for probation under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000. (Pen.Code, §§ 1210, 1210.1, 3063.1; Health & Saf.Code, § 11999.4 et seq.) [1] Proposition 36 requires the court to grant probation and drug treatment to any defendant convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation. (§ 1210.1, subd. (a).)

However, as relevant here, Proposition 36 shall not apply to a defendant previously convicted of a serious or violent felony unless he or she has satisfied a so-called five-year "washout" period, that is, "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…