Can a defendant be granted probation under Proposition 36 even if they have been convicted of a minor motor vehicle violation?

Appellant relies on People v. Orabuena (2004) 116 Cal.App.4th 84, 10 Cal.Rptr.3d 99 (Orabuena ) to bolster his claim. In Orabuena, the issue was whether the trial court, having granted probation, could dismiss a misdemeanor conviction, for purposes of granting the defendant probation under Proposition 36. The reviewing court concluded that in the procedural posture of that case, the trial court could dismiss that conviction. The defendant had admitted a misdemeanor Vehicle Code violation early in the proceedings and was granted probation as to that count, and it was several months later that he pled no contest to two drug charges. However, the Vehicle Code conviction precluded a grant of Proposition 36 probation. (Id. at pp. 8990, 10 Cal.Rptr.3d 99.) On appeal, the defendant argued the trial court had the ability under section 1385 to dismiss the Vehicle Code conviction and abused its discretion when it did not do so.

Orabuena concluded the defendant was correct: