The Homelessness, Drug Addiction, and Theft Reduction Act (HDATRA) was approved by a majority of California's voters by way of an initiative on Nov. 5, 2024. One of the changes to the law made by HDATRA (§ 7) was adding a "Treatment-Mandated Felony" (TMF, Health & Saf. Code, § 11395 (11395)). As summarized by the initiative, the TMF gave prosecutors "discretion to charge a felony for hard drug possession after two previous drug convictions. If charged with this [TMF] for a third or subsequent drug offense, the offender would be given the option of participating in drug and mental health treatment. If the offender successfully completes drug and mental health treatment, the charge would be fully expunged, and the offender would receive no jail time. If the offender refuses drug and mental health treatment, they would serve jail time for hard drug possession." (HDATRA, § 3(A)(4).) This article and accompanying self-study quiz will discuss essential aspects of the TMF, highlighting provisions which will have to be clarified by the courts.
The statute
The TMF became effective on Dec. 18, 2024, the fifth day after the secretary of state filed the statement of the vote for the election. (Cal. Const., art. II, § 10, subd. (a).) To the extent it increased punishment, in order to not violate the constitutional prohibition to ex post facto laws, the statute applied only to offenses committed on or after this date. (Tapia v. Superior Court, 53 Cal.3d 282, 295-296 (1991).)
11395(b)(1) states, "Notwithstanding any other law, and except as provided in subdivision (d), a person described in subdivision (c) who possesses a hard drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code. A second or subsequent conviction of this section, is punishable by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison." (Persons sentenced under Pen. Code, § 1170(h) serve their prison-length sentences while in county jail.)
The most common "hard drugs" included are fentanyl, heroin, cocaine, cocaine base, methamphetamine, phencyclidine and the drugs' analogs. (11395(e)(1).) Cannabis, peyote, LSD, and "other psychedelic drugs, including mescaline and psilocybin (mushrooms)" are not covered by the TMF. (11395(e)(2).)
11395(c) provides the statute applies to a person that possesses a hard drug who has two or more prior convictions for felony or misdemeanor drug offenses, including possession, possession for sale and sale of fentanyl, heroin, cocaine, cocaine base, methamphetamine, phencyclidine and their analogs.
Under 11395(d)(1)(A), a person can avoid being sentenced under 11395(b) by electing "treatment," which entails "pleading guilty or no contest to a violation of this section and admitting the alleged prior convictions, waiving time for sentencing and the pronouncement of judgment, and agreeing to participate in, and complete, a detailed treatment program developed by a drug addiction expert and approved by the court." Upon successful completion, the court must dismiss the charge, and "the arrest upon which the defendant was deferred shall be deemed to have never occurred." (11395(d)(3).)
Termination of treatment is governed by 11395(d)(4). This provision states, "If at any time it appears that the defendant is performing unsatisfactorily in the program, is not benefiting from treatment, is not amenable to treatment, has refused treatment, or has been convicted of a crime that was committed since starting treatment, the prosecuting attorney, the court on its own, or the probation department may make a motion for entry of judgment and sentencing. After notice to the defendant, the court shall hold a hearing to determine whether judgment should be entered and the defendant sentenced. Judgment shall be imposed and the defendant sentenced if the court finds true one or more of the foregoing circumstances. However, except when the defendant has been found to have been convicted of a crime that was committed since starting treatment, the court may re-refer the defendant to treatment if the court finds that it is in the interest of justice to do so, that the defendant is currently amenable to treatment, and if the defendant agrees to participate in, and complete, a treatment program as described in this section."
A court cannot sentence a person to jail or prison unless the court determines "that the person is not eligible or suitable for treatment." (11395(b)(2).) Under this provision, the court can also impose a jail or prison sentence when it determines a person is not performing satisfactorily or not benefitting from a treatment program, or is not amenable to treatment, or has refused treatment, or has been convicted of a crime committed since commencing treatment.
With regard to pre-conviction incarceration, 11395(f) provides, "Upon an arrest for a violation of this section, the court shall require judicial review prior to release to make an individualized determination of risk to public safety and likelihood to return to court."
The TMF is a wobbler
A felony is a crime punishable by imprisonment in state prison or county jail under Penal Code section 1170(h); other crimes, unless designated as infractions, are misdemeanors (Pen. Code, § 17(a)). A common length of imprisonment for a felony is 16 months, two or three years (Pen. Code, § 18(a)), but if probation is granted, a person may be incarcerated in county jail as a condition of probation for up to one year. (Pen. Code, § 1203.1(a).) Misdemeanor sentences cannot exceed one year in jail, whether or not probation is granted. (Pen. Code, § 19.2.)
Some crimes, known colloquially as wobblers, are chargeable and punishable as either felonies or misdemeanors. (Pen. Code, § 17(b).) A prosecutor may elect to charge a wobbler as a felony or a misdemeanor, and a court has discretion to reduce a wobbler charged as a felony to a misdemeanor. (Ibid.) A prosecutor cannot charge a straight felony as a misdemeanor, and a court lacks the power to reduce such a crime to a misdemeanor. (People v. Beebe, 216 Cal.App.3d 927, 930 (1989).)
A wobbler is defined as a crime that is punishable "either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail." (Pen. Code, § 17(b).) When a crime is classified as a felony "without providing for alternate punishment," it is a straight felony, and when an alternative sentencing option is included in a statute, it provides the authority to charge, or for a court to reduce the charge, to a misdemeanor. (People v. Mauch, 163 Cal.App.4th 669, 674 (2008).)
The new offense is called a "Treatment-Mandated Felony." (11395(a).) Also, the TMF was created based on the stated perception that Proposition 47 reduced punishment for possession of drug crimes by converting offenses from felonies to misdemeanors, and the "homelessness problem is directly connected to these unintended consequences of Proposition 47." (HDATRA, § 3(A)(2).)
Nonetheless, the language used by the TMF closely matches the definition of a wobbler. 11395(b)(1) states, for a first TMF offense, a person "shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code." Similarly, a second TMF violation "is punishable by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison." (Ibid.) Even if intended to be a straight felony, using the same language defining a wobbler in Penal Code section 17(b) means a wobbler was enacted. (Lungren v. Deukmejian, 45 Cal.3d 727, 735 (1988) [When the statutory language is unambiguous, its plain meaning controls].)
Can a court dismiss TMF priors in furtherance of justice?
The potential prison sentences provided under the TMF apply when a person has two or more specified prior convictions. (11395(b), (c).) If a person does not have at least two priors, possession for personal use of the "hard drugs" encompassed by the law will typically be punishable only as a misdemeanor. (See, e.g., Health & Saf. Code, §§ 11350, 11377; cf. §§ 11351/11351.5 [possession for sale of drugs punishable as a felony], 11370.1 [same for possession of drugs armed with a firearm].)
Penal Code section 1385 gives a court the power to dismiss when it is "in the furtherance of justice" to do so. The statute has been held to allow dismissal of prior convictions that increase punishment. (See People v. Hernandez, 22 Cal.4th 512, 521-522 (2000).) If a court has power to dismiss a TMF prior in an appropriate situation, the case will commonly proceed as a misdemeanor, eliminating the possibility of a prison sentence or a sentence greater than one year in jail.
11395(b)(1) provides that "Notwithstanding any other law" a person with two or more specified priors "shall" be punished as indicated. This language could be intended to bar the use of any other law--including Penal Code section 1385--to remove a person from the TMF scheme. Yet, the "Notwithstanding any other law" language has been held to not be a sufficiently clear indication of intent to eliminate the use of Penal Code section 1385. (People v. Superior Court (Romero), 13 Cal.4th 497, 524, fn. 11 (1996).)
If a court can dismiss TMF priors, it will weigh the interests of society and the defendant's individual circumstances. (See People v. Williams, 17 Cal.4th 148, 159 (1998).) Of note, it appears even misdemeanors can constitute qualifying TMF priors, there is no requirement that priors originate from separate past cases, and no washout is provided, allowing the use of priors regardless of their age (11395(c)). There could thus be instances when it would be in furtherance of justice to relieve a person from receiving a potential prison sentence under the TMF, partly based on the nature of the person's priors. (See, e.g., People v. Burgos, 117 Cal.App.4th 1209, 1215-1216 (2004) [whether priors originate from single act or course of conduct is a relevant consideration in using § 1385].)
Interplay with other laws
Statutory schemes in effect when HDATRA was approved provide for treatment of persons charged with crimes. As with the TMF, upon successful completion of treatment, cases are dismissed.
For misdemeanors, including possession of drugs, judicial diversion is provided, allowing a court to continue a case--prior to a defendant pleading or being found guilty--while a defendant participates in a program "that the judge deems appropriate based on the defendant's specific situation." (Pen. Code, § 1001.95(b).) With felonies and misdemeanors, pretrial mental health diversion may be granted when a "defendant's mental disorder was a significant factor in the commission of the charged offense." (Pen. Code, § 1001.36(b).) Also, when a defendant is charged with a felony or misdemeanor drug possession offense--and has no prior drug offense convictions within five years of the alleged commission of the new crime--deferred entry of judgment (DEJ) may be granted, postponing sentencing pending the defendant's completion of a drug program. (Pen. Code, § 1000.) Additionally, under the Proposition 36 initiative from the year 2000, a person convicted of a specified drug possession crime "shall receive probation," with drug treatment as a condition, and a court "may not impose incarceration as an additional condition of probation." (Pen. Code, § 1210.1(a).)
The Court of Appeal in Reed v. Superior Court, 117 Cal.App.5th 697, 702 (2025), held that mental health diversion may be granted even when a prosecutor has alleged priors under the TMF. Reed recognized the requirement that the TMF "shall" apply "Notwithstanding any other law" (11395(b)(1)), yet concluded that, while the language "expresses the voters' clear intent that section 11395(b)(1) prevail over conflicting laws that would otherwise prohibit felony punishment for drug possession," it did not "provide that the treatment path described in section 11395(d) is the exclusive treatment path available to a defendant charged under section 11395 or even that section 11395(d)'s treatment path applies "'[n]otwithstanding any other law.'"" (Reed v. Superior Court, supra, 117 Cal.App.5th at p. 709.)
11395(g) provides the TMF statute "shall not be construed to preclude prosecution or punishment pursuant to any other law." It appears this provision allows prosecutors, in their discretion, to charge a person with possession of drugs without alleging priors under the TMF, proceeding with cases as if they were misdemeanors, and rendering the previous diversion/DEJ/Year 2000 Prop. 36 applicable. Concomitantly, the provision could be construed to permit prosecutors to charge persons with offenses, such as possession for sales (Health & Saf. Code, §§ 11351/11351.5) and possession of drugs while armed with a firearm (Health & Saf. Code, § 11370.1), which provide for greater punishment than the TMF, especially if alternative sentencing schemes apply (e.g., the Three Strikes law, Pen. Code, §§ 667(b), 1170.12).
Terminating treatment
The court's authority to terminate treatment varies depending on the reason for the termination. A termination based on a defendant committing a new crime circumscribes a court's power.
Following a hearing, if the court determines a defendant who agreed to undergo treatment is performing unsatisfactorily in a program, is not benefiting from treatment, is not amenable to treatment or has refused treatment, "Judgment shall be imposed and the defendant sentenced." (11395(d)(4).) But if the court makes such a determination and concludes "it is in the interest of justice to do so" and "the defendant is currently amenable to treatment" and "the defendant agrees to participate in, and complete, a treatment program," the court "may re-refer the defendant to treatment." (Ibid.) However, under this provision, if a court determines a defendant "has been convicted of a crime that was committed since starting treatment," the court must impose judgment and lacks power to re-refer the defendant for treatment.
A couple of questions remain. Can the new "crime" disqualifying a defendant from treatment and requiring the court to impose judgment be an infraction, such as a traffic violation? (See Pen. Code, § 16 [crimes include infractions].) Must a court wait until a person is "convicted" of a new crime prior to imposing judgment, or can the court exclude a defendant from treatment and impose judgment if it determines at the revocation hearing that a defendant committed a new crime? (Cf. 11395(d)(4) [court must impose judgment if defendant is "convicted" of a new crime], with Year 2000 Prop. 36, Pen. Code § 1210.1(f)(2) [court can terminate treatment if it finds a defendant violated probation by "committing" a new crime].)
Conclusion
With respect to the TMF, as with many other prior changes to the law, enactment of a statute is only the first step in effectuating the drafters' intent. It remains to courts, through consideration of litigants' arguments and applying the rules of statutory construction, to flesh out the details.