In Re Ogea

I. INTRODUCTION

A jury convicted Kenneth Robert Ogea of one count of unlawfully possessing methamphetamine in his home while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). By petition for writ of habeas corpus, Ogea challenges the trial court’s order denying his request for probation and treatment under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, §§ 1210, 1210.1, 3063.1), and for release on his own recognizance.

Ogea’s writ petition presents an issue of first impression: Whether his conviction under Health and Safety Code section 11370.1, subdivision (a) for possession of a controlled substance while armed with a loaded, operable firearm constituted a “nonviolent drug possession offense,” as defined in Penal Code section 1210, subdivision'(a).

Based upon the language and intent of Proposition 36 and of Health and Safety Code section 11370.1, we hold the term “nonviolent drug possession offense,” as defined in Penal Code section 1210, subdivision (a), does not include a violation of.Health and Safety Code section 11370.1. We therefore conclude Ogea was not convicted of a nonviolent drug possession offense making him…