Prop 36 Probation California
Proposition 36 provides that:
(1) the first time an offender violates a drug-related condition of probation, the offender is entitled to be returned to probation unless he or she poses a danger to others;
(2) the second time the offender violates a drug-related condition of probation, he or she is entitled to be returned to probation unless the offender poses a danger to others or is unamenable to treatment;
(3) the third time the offender violates a drug-related condition of probation, he or she loses the benefit of Proposition 36's directive for treatment instead of incarceration. (See People v. Hazle (2007) 157 Cal.App.4th 567, 572-573.)
Proposition 36 does not, however, extend the same grace to probationers who violate non-drug-related conditions of probation.
The first time a probationer violates such a condition, the court has discretion to incarcerate the person. (People v. Dixon (2003) 113 Cal.App.4th 146, 151.)
The Substance Abuse and Crime Prevention Act of 2000, enacted by the voters in Proposition 36, added sections 1210 and 1210.1 to the Penal Code. (People v. Glasper (2003) 113 Cal.App.4th 1104, 1112.)
It "amended state law to require that certain adult drug offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, instead of receiving a prison term or probation without drug treatment." (People v. Floyd (2003) 31 Cal.4th 179, 183.)
"Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time." (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.)
The proposition includes specific rules to be applied when a defendant granted probation with a drug treatment condition violates a condition of probation. (People v. Guzman (2003) 109 Cal.App.4th 341, 347.)
Different rules apply depending on whether the defendant violates a "drug-related" or "non-drug-related" condition of probation. (Id. at p. 348.)
Former Penal Code section 1210.1, subdivision (f) provides:
"The term 'drug-related condition of probation' shall include a probationer's specific drug treatment regimen, employment, vocational training, education programs, psychological counseling, and family counseling."
In People v. Guzman (2003) 109 Cal.App.4th 341, the defendant accepted Proposition 36 probation, but then left the country, failed to appear in court, and failed to report to his designated drug treatment center.
When the defendant appeared involuntarily in court on a bench warrant, his counsel argued, inter alia, that his actions could not be deemed a refusal of treatment because he had accepted drug treatment at his sentencing hearing. (People v. Guzman, supra, 109 Cal.App.4th at pp. 343-345.)
The trial court revoked probation on the ground that the defendant had rendered himself unamenable for drug treatment. (Id. at p. 345.)
The Court of Appeal affirmed, stating "the eligibility requirements continue to apply even after the initial grant of probation.
To be sure, the trial court would be justified in terminating the probation of a defendant who commences drug treatment and who later advises the court he or she no longer wishes to continue in treatment and would rather serve time.
It follows necessarily, then, that the trial court can terminate the probation of a defendant who, by his conduct following the grant of probation, refuses to undergo drug treatment." (People v. Guzman, supra, 109 Cal.App.4th at p. 350.)