Moore

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 other than a nonviolent drug possession offense . . . .” (§ 1210.1, subd. (b)(1), italics added.)

The sole issue is whether it is the commission or the conviction of the prior disqualifying felony that begins the washout period. We hold that the *404 washout period commenced when petitioner…