Richard Wheeler is badly addicted to Vicodin, and forges a prescription to obtain it. He's (easily) caught. He wants diversion pursuant to Proposition 36. The trial court refuses, and in this opinion, Justice Nicholson affirms.
Wheeler's basically being convicted for illegally possessing Vicodin. I'm fairly confident that the drafters of Proposition 36 would have wanted him to be eligible for diversion. Nonetheless, I agree with Justice Nicholson that, as written, the statute doesn't cover him. He's charged with writing a forged prescription. That's not simple possession, and there are separate reasons why we might want to ensure the integrity of the prescription distribution chain. The statute could have been written to cover Wheeler. But it wasn't. So he's not entitled to diversion.
Parenthetically, Justice Nicholson doesn't note -- but it's worth mention -- that some people charged with Wheeler's offense may well be entitled to diversion, even if he's not. Section 11368 of the Health and Safety Code is applicable not only to "[e]very person who forges or alters a prescription," but also to anyone who "obtains any narcotic drug by any forged, fictitious, or altered prescription" or who "has in possession any narcotic drug secured by a forged, fictitious, or altered prescription." Those last two categories would indeed be eligible for diversion under Proposition 36. But Wheeler wasn't charged with those (since, inter alia, the pharmacist gave him calcium pills rather than Vicodin), so Proposition 36 doesn't apply to him. But the same might not be true for other Section 11368 convictions, to which Proposition 36 would indeed apply. (There's a separate point about whether it's rational to leave Proposition 36 eligibility to the unfettered charging discretion of the prosecutor in the typical Section 11368 case, in which multiple sections of this same statute are applicable, but I'll leave that topic for another time.)
