that's if that finding of fact was an abuse of discretion then you're not bound by it the argument is that if you review your record the record will show certain things that could lead you to believe that it's an abuse of discretion but otherwise assuming their right under california law and i can make this representation from knowledge i believe for thirty years possession of cocaine for at least thirty years and been punished as  so to answer your question under under california law when he was convicted in one thousand nine hundred one california viewed the offense as a felony and it was possession i actually think that although i'm not positive to this that it started out on a different program but it ended up as being a california felony and i think the only way that i can argue that it is not a california felony is to look at the new i don't agree with the court that that is the proper reading of the statute but i agree with the court that that is a possible reading of the statute i think that the and it depends again on what we're talking about on the statute if we're talking about the term felony drug offense means any offense that is punishable by imprisonment for more than one year under any law of the united states or a stickler for your right of a state and then the question becomes what do we mean by or of a state or foreign country that prohibits restricts conduct related into narcotics drugs marijuana whatever and by that or you mean or in a state of fanchon that would also be punishable as a felony under the federal system then i'm correct if you mean if that war means that it's any offense that any state has said he's punishable by more than one year i moved while that's  well that that brings me to the new part of today to the change of california law all when they prop when they passed proposition thirty six california has made a choice that's still being aired out to some extent by the california courts about what you do with someone that is charged with an offense for possession of drugs and  cocaine that's what we're talking about i'm put into a drug treatment program if i go and i fail the drug treatment program the worst thing that can happen to me and i don't happily participate in a program the worst thing that happens to me something here's what i thought was the law but i may be mis misunderstanding i thought federal law is irrelevant because the statute says or of a state as a word or let's assume that for purposes of this guy and then i thought under california law when he was convicted it was a felony and he did felony time did more than a year and subsequently california created this drug treatment safety valve so that a person may be able to avoid the felony conviction but if i understand california law correctly it not repeal the criminal law making possession of cocaine a felony it still is a felony under section eleven three fifty i have to grant the prosecutor right no actually it doesn't work it's not completely resolved but the way that it works is actually this section technically applies after a conviction when you start looking at this proposition which is in couple of california it's called proposition thirty six that talks about after someone is convicted prior to this being  enacted california had their diversion program and that talked about when the accusatory pleading was filed so what happened is under the first system of law the district attorney could make a choice whether or not someone was in a drug treatment program might be charged a crime under this the way i understand this law is if someone is convicted of the possession the discretion of the district attorney is now gone and now the court assuming that the advance that it was possession for personal use is then required to follow this procedure and implement this procedure with its  eleven three fifty conviction is that not down to a misdemeanor is the worst thing is that i assuming the scenario i gave that was someone that had been in the other two situations and i know of no court case that has resolved this i'm telling you that right now because this has not been on the books that long and it obviously takes a while to shake things out but the way i understand it the maximum punishment for someone that does that is a misdemeanor punishment of less than a year although the underlying statute and a general matter as punishment for sixteen two or three three your favorite person would have a right to be punished for less than a year unless he refused to yet although as i say there are some language support what you're saying is is that yes it would have to be the case if you were right that is if the statute were changed in the other direction somebody could be charged with having had a felony even though in name got to take care of it and they've got to provide punishment for it and they work out a way to provide substantial punishment for i don't see in this argument it seems to me that the feds and the states have different knowledge different concerns in their legislative bodies ok that's me i think that something isn't a big social problem but there may be some particular state where it is like i don't know hypothetically maybe they just didn't much of a methamphetamine business in new york but it's really big and montana say so in new york they don't treat it as a serious crime in the month and a state legislature really hammers people for they might do that what's more what's a big social problem  change a state they regard something that's a big social problem and one nine hundred fifty two and then in one thousand nine hundred two the legislature may decide you know it's not really a problem at all there's just no reason for us to be spending money putting people in state beds and given him state meals on account of this and they may drop it it seems reasonable to look at things in terms of when the people that  well you know like selling liquor i'll begin with if you do it to the wrong time in the one nine hundred twenty s no problem at all if you do it the fifty's well i agree that that's true but there's a remedy for that you know this case could have been brought in to state court these were state agents assigned to a task force doing this case and was angelus state california wouldn't punish just by a lie the reason this is here is because the federal government using a case that would have prior case that would have been a federal misdemeanor can make this li smith uniformity it's the founders with diverse country well why it's a better government involvement if they don't want national uniformity if they don't want the means and have some kind of uniform punishment so everybody knows if you do that partly spending federal money any kind of textual argument that can get around that word or well i believe that the word or only refers to an offense that's punishable by one year or more under any law united states that's that's how i  california describes what you do with people that have had prior treatment what you do with people that haven't had prior treatment you are right if he was prosecuted today as a first it may be and i have to be candid it may be that as a first time offender if he hasn't had prior conduct it may be that he oldham atlee could be sentenced to a felony so in other words if you the problem is this is the california law now if you're a first offender if it's a felony if you're a repeat offender it's a misdemeanor if you can be the most that you can be sentenced to under certain instances and this offense  sense but i really believe that that may very well be the case i believe that it may defend append upon who the offender is whether or not now it is punishable by one year or three or more lives yes yes yes it is in the i believe it's actually in the appendix to the brief and i believe that it starts on page it starts on page eighty four to the agenda search about the circus season yes actually i do if shocking to me that anyone could question the fact that there has to be some information about a dog and whether or not a dog in the magistrate knows what this kind of thing years i mean there's certainly nothing in here that would leave you to believe that this dog with the accurate and in hindsight we know that the dog we know that what they did that they didn't find something but we also know that to the dog more than likely w information that was introduced purely legal arguments pertaining to the allegation of prior conviction however i can do that to the extent to which the court has questions on it i have a question yes the federal statu through forty four uses the word you so it makes it look as though you look at the present time whether that makes sense or not as the way to interpret  think that the statute requires a second chance but if you fall out on the second chance then you are in fact in the sense the state prison without any new fall out of probation you mean violate probation yes but with with this new framework it's a very structured probation we go to drug treatment class so if you refuse the drug treatment or you don't complete but if you do what you're told is it true that under california law now a person must not withstanding any other california statute be given probation or position if i am looking at  look at it at the same time so you can make textural arguments twelve ten point one  i think that's correct i think that if a person is a mistress was simple they must be given that first chance but that does not mean that it is not an offense continues to be an offense punishable by state prison after three years for simple situation and as i read it it's the opposite really quickly it seems to me even the opposite of what he said that is if this was a second if he had previous convictions he would not be entitled to this  it seems to say if he had two separate convictions for nonviolent drug possession offenses then he sentenced to thirty days rather than term probation but if he doesn't have two prior convictions then he sends to probation is that  that's not correct somewhat that's not my understanding my understanding is the prosecutor has the option of simply charging you as a repeat offender at this point and you no longer can fall into that  mean if they eventually criminalize the residual amount of marijuana and make it a felony or something like that i haven't thought about that right you know it's certainly think eventually going to bump up against the manager that's entirely going to bump up against the eighth amendment at you know and i would i would disagree with that i think that what all this new framework is doing and don't weigh in on this new framework is doing is requiring drug treatment as one of the steps you go through on probation court may not impose incarceration as an additional condition of probation used to be you went to prison for two years now you don't even go to jail well you didn't go to prison i'm not clear on well you could it certainly remain a often you don't even go to jail and it says notwithstanding any other provision of law it basically remove the discretion from the judge and some extent a prosecutor in  the punishment is for having violated as well as having committed the the original crime i guess i would agree with you this become more lenient in as much as it now requires people on simple possession cases to go through this treatment process i mean if i understand your argument right you're telling me well it isn't really more lenient because we used to give people a break anyway even though the law made it a felony and and now all it's doing  lab or retriever currently certified as an architect in our comics detection canine by the national narcotic detector association now you do have to first of all it doesn't contain on a c v of the dog so to speak like there are these schools they used to advertise on match books now only ever case other otherwise and instead of being credited by a real accrediting agency they organize their own phony accrediting agency  return address and there is some suspicion case to be placed upon the addressee in this case money well what we've got is the postal inspector talks to the route handler stepped in and said was that i don't know there and says she's been receiving mail in the past but i'm not sure she's living there we don't know that means it's not an overwhelming fact i don't know it's something that matters i mean my kids still receive mail in my house even though they don't live there anymore it is one and then i want to wait a college in the ninety's and have a look at home since i agree that if you're sending a box with drugs the idea is that you're concerned about the question you have to run the other direction the question is whether that i can't remember if you saved any time you know provocative take thirty seconds actually may be wrong and it may be that depending on the defendant  it because some people are ineligible for this program that it's ok if you like if you were arrested with a firearm can be placed in this program but depending upon the defendant it may be that in fact you cannot receive a the dock and or didn't say the dog alerted it he didn't prepare the affidavit the postal inspector prepared the affidavit in the postal inspectors at the dot over