Proposition 36 California Law
In People v. Dagostino (2004) 117 Cal.App.4th 974, the Court summarized the applicable law as follows:
"A defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme.
For such a defendant, Proposition 36 supersedes the trial court's general power to revoke probation .... 'Different rules apply depending on whether a defendant violates a non-drug-related or drug-related condition of probation.' '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. the first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others. ( 1210.1, subd. (e)(3)(A).)
The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. ( 1210.1, subd. (e)(3)(B).) Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36's directive for treatment instead of incarceration. ( 1210.1, subd. (e)(3)(C).)
Upon such a violation, the court regains its discretion to impose jail or prison time. 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. ( 1210.1, subd. (e)(2).)'
"The prosecution has the burdens of producing evidence and of persuasion that defendant's violation 'did not involve a drug-related condition of probation.' Section 1210.1, subdivision (f) states:
'The term "drug-related condition of probation" shall include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.'
"Thus, a defendant may be excluded from the provisions of Proposition 36 ... if his or her probation violation was not drug related. 'A defendant who has violated a non-drug-related condition of probation loses the "grace" granted to probationers otherwise subject to Proposition 36. at that point, the defendant stands in the same shoes as any other probationer and he is subject to whatever sentencing statutes bear on his sentencing.' the court then has the full range of options otherwise available in the probation revocation proceeding ...."