[REVIEW GRANTED] In re Varnell (2002)

In re RONALD LEE VARNELL on Habeas Corpus.

[Modification of opinion (95 Cal.App.4th 205) on denial of petition for rehearing.]

THE COURT.- fn. *

It is ordered that the opinion filed herein on January 15, 2002, be modified as follows:

1. The second sentence of the last paragraph commencing on page 11 and continuing on page 12, which reads: "The initiative was undoubtedly designed to apply to nonviolent offenders whose prior strike convictions, if any, had 'washed out' under its provisions." is deleted and the following sentence is to be inserted in its place:

To the contrary, because the initiative specifically provided it applied to nonviolent offenders whose prior strike convictions had "washed out" under its provisions, many voters undoubtedly believed that offenders with more recent strike convictions, such as Varnell, would not be eligible for mandatory probation and drug treatment.

2. On page 12, the first full sentence that starts: "Nevertheless, when voters enact an initiative," should start a new paragraph.

3. On page 12, after the citation that reads: "(Williams, at pp. 484-485;see also People v. Rizo, supra, 22 Cal.4th at p. 685 [same principles governing statutory construction apply to interpretation of voter initiative].)" add as footnote 11 the following footnote, which will require renumbering of all subsequent footnotes:

11 If Proposition 36 had given discretion to the trial court to permit probation for nonviolent offenders with prior strike convictions who had been free of prison and committed no other felony within the past five years, it might reasonably be argued that the voters intended to restrict the trial court's broader discretion under section 1385. The mandatory nature of the washout provision, however, like the mandatory disqualification for strike convictions itself, permits no inference to be drawn with respect to the court's power to exercise discretion under section 1385.

There is no change in the judgment.

FN *.Johnson, Acting P. J., Woods, J., and Perluss, J.