ORABUENA

The Substance Abuse and Crime Prevention Act of 2000 (hereafter Proposition 36 or the Act) provides that persons convicted of certain nonviolent drug offenses shall be ordered to probation and receive drug treatment in lieu of incarceration. The Act excludes certain defendants from its purview, including someone like defendant Timothy Robert Orabuena who has been convicted in the same proceeding of a misdemeanor that is not related to the use of drugs. (Pen. Code, § 1210.1, subd. (b)(2).)

In this case, we consider whether the trial court has the discretion under Penal Code section 1385 to dismiss such a misdemeanor that would otherwise render a defendant ineligible for the special sentencing provisions of Proposition 36. We conclude that a trial court has the power to dismiss such a disqualifying misdemeanor and that the court' failed to determine whether dismissal is appropriate in this case. We shall therefore reverse and remand so that the court may consider whether it should dismiss defendant’s conviction in the same proceeding of a misdemeanor that is not related to the use of drugs so that he may become eligible for the special sentencing provisions of Proposition…