California law mandates drug treatment instead of incarceration for possession and for transportation for personal use of marijuana and other drugs. The defendant is eligible for the drug treatment program even after conviction, unlike Deferred Entry of Judgment, which must be taken before trial. The program can require numerous meetings, counseling and commitment to stop all drug use.

The program is up to 12 months and 6 months after-treatment. Defendants can expect to be drug tested in the Prop. 36 programs. Probation may be revoked for failure of the drug treatment program or for committing a violent offense, Defendants are allowed probation violations, for example, two failed tests or poor attendance, prior to being exposed to jail. Upon successful completion the conviction will be set aside.

Prior convictions for drug offenses, even sales, will not disqualify a defendant under Proposition 36 unless a conviction is for a serious or violent felony committed within the past 5 years, e.g., a strike conviction as listed in CA Penal Code Section 667.5 PC or § 1192.7 PC.

Note from Bruce:

Medical marijuana patients are eligible for Prop 36 treatment. See People v. Beatty (2010) 181 Cal. App. 4th, p. 644.

Drug Court Sentencing Alternatives

A program of rehabilitation can be an alternative to jail. Conviction for almost any offense committed due to substance abuse may qualify. The court has great discretion as to which defendants they will accept. The defendants’ history and record is considered, in particular any prior rehabilitation attempts and violent offenses. Typically, cases accepted are theft related crimes due to drug dependency.

Parolees: A person on parole who commits a non-violent drug possession offense or who violates a drug-related condition of his/her parole may be eligible for Prop. 36, instead of returning to prison. The parolee must have no prior convictions at any time for serious/violent felonies. Parole authorities (not the courts) set conditions.


LAW: Entrapment occurs when police or informants use tactics that would convince an otherwise law-abiding person to commit a crime. A defendant is not guilty of any offense if the defendant’s intent to commit the crime was created by the police or their informant. Under Federal law showing the defendant had a prior propensity to commit the crime can defeat a claim of entrapment.

Offering an Opportunity is Not Entrapment

Police or their agents (informants), while under cover, may provide the opportunity for the crime to be committed. For example, “Hey, anyone here want to sell me some herb?” That is NOT entrapment.

Note from Bruce:

COPS CAN LEGALLY LIE- Undercover narcotics officers and their informants do not have to tell the truth or admit their informant role, even if they are asked directly. Asking, “are you a cop?” doesn’t help.

Checkout the full Margolin Guide.

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