Harbison

*978 Opinion

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act), was approved by the voters in the November 7, 2000, General Election. The Act dramatically changed the options for sentencing defendants convicted of nonviolent drug possession offenses, 1 “[Notwithstanding any other provision of law.” (Pen. Code, § 1210.1, subd. (a).) 2 As with sentencing pursuant to the determinate, indeterminate, and violent sex crime statutes, the Act establishes yet another unique alternative sentencing scheme. (See People v. Neely (2009) 176 Cal.App.4th 787 , 798-800 & fn. 7 [ 97 Cal.Rptr.3d 913 ].)

The Act’s alternative sentencing scheme mandates probation and drug treatment instead of incarceration for qualifying offenders. (§ 1210.1, subd. (a).) 3 It also specifies five categories of such offenders who are ineligible for treatment. This case concerns one discrete category: those who have at least twice participated in two separate courses of drug treatment under section 1210.1, subdivision (a) and are “found by the court ... to be unamenable to any and all forms of available drug treatment.” (§ 1210.1, subd. (b)(5).) 4 The Act underscores the exclusivity of this…

“Absurdity—I know it when I see it.” (Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1702 [ 8 Cal.Rptr.2d 614 ] (dis. opn. of Gilbert, J.).) Even though I was the author of the majority opinion 22 years ago in Unzueta , I am still haunted by the dissenting opinion. I am finally able to use it.

I respectfully dissent because in my view the result reached by the majority opinion, while obedient to the “plain meaning rule” (see, e.g., People v. King (1993) 5 Cal.4th 59, 69 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ]), is in effect absurd. For those readers expecting a scholarly law review explanation of just why I have come to this conclusion, you will be disappointed. There are few, if any, sources guiding an appellate court on how to apply the absurdity *987 exception to the “plain meaning rule.” It does not matter what Lord Bramwell would have done. (Unzueta v. Ocean View School Dist., supra, 6 Cal.App.4th at p. 1698 .) It does not matter what Judge Learned Hand would have done. (Id., at pp. 1692-1693.) It does not matter what Justice Macklin Fleming would have done. (Id., at p. 1699.) The question comes down to how an individual justice uses his or her common sense,…

Filed 10/21/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B251492 (Super. Ct. No. 2013000558) Plaintiff and Respondent, (Ventura County)

v.

JEFFREY HARBISON,

Defendant and Appellant.

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act), was approved by the voters in the November 7, 2000, General Election. The Act dramatically changed the options for sentencing defendants convicted of nonviolent drug possession offenses,1 "[n]otwithstanding any other provision of law." (Pen. Code, § 1210.1, subd. (a).)2 As with sentencing pursuant to the determinate, indeterminate, and violent sex crime statutes, the Act establishes yet another unique alternative sentencing scheme. (See People v. Neely (2009) 176 Cal.App.4th 787, 798-800 & fn. 7.)

1 (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) Analysis of Prop. 36 by Legislative Analyst, p. 23 [hereafter Ballot Pamphlet].) 2 All statutory references are to the Penal Code unless otherwise stated. References to section 1210.1 designate former Penal…