Proposition 36 Probation
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Act), was adopted at the November 7, 2000 General Election, and is largely codified at Penal Code sections 1210 and 1210.1.
In arguing the trial court should not have found him unamenable to treatment and should have continued him on Proposition 36 probation, defendant relies heavily on language contained in the 2006 amendment to section 1210.1, and the legislative intent behind that amendment to support his claim. Defendant notes we have refused to apply the 2006 amendment.
Section 1210.1 was amended effective July 12, 2006 (Stats. 2006, ch. 63, 7 (SB 1137)); however, a preliminary injunction was issued on September 14, 2006, enjoining the People "from taking any action to implement, enforce or give effect to Senate Bill 1137 . . . until such time as a trial on the merits may be had or until further notice of this court." (Gardner v. Schwarzenegger (Super. Ct. Alameda County, 2006, No. RG06-278911) 2006 WL 4717840.)
On May 7, 2008, the court granted the plaintiffs' motion for summary judgment and granted their writ of mandate. As of the time defendant wrote his brief, that court had not yet issued a writ of mandate or permanent injunction. Since defendant's briefing was filed, however, the court has acted.
On July 14, 2008, the court issued its judgment granting writ of mandate and injunctive and declaratory relief. The writ directed the People to "refrain from taking any action to implement, enforce or give effect to any of the provisions of Senate Bill 1137."
The permanent injunction restrained the People from "taking any action to implement, enforce, or give effect to Senate Bill 1137." SB 1137 was declared invalid in its entirety and without force or effect. Accordingly, as we did in People v. Hazle (2007) 157 Cal.App.4th 567, 577, footnote 1, and People v. Hartley (2007) 156 Cal.App.4th 859, 861, we will apply the former version of section 1210.1, that is the version that was in effect before the Legislature enacted the 2006 amendment.
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: (1) that his actions could not be deemed a refusal of treatment because he had accepted drug treatment at his sentencing hearing; and (2) that his probation could not be terminated, since his conduct constituted only a "'first violation'" of probation. (Guzman, supra, 109 Cal.App.4th at pp. 344-345.)
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. Such a defendant is to be distinguished from a defendant who commences drug treatment and thereafter falters by violating conditions of probation. The transgressions of such a defendant would be analyzed as probation violations pursuant to section 1210.1, subdivision (e)." (Guzman, supra, 109 Cal.App.4th at p. 350.)