(Super. Ct. No. 2008012948) (Ventura County), Colleen Toy White, Judge.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
Appellant John Casey Friedeck refused drug treatment as a condition of deferred entry of judgment (DEJ). (Pen. Code, § 1000 et seq.)*fn1 We conclude his refusal makes him ineligible for probation under Proposition 36. (§ 1210 et seq.) We approve People v. Strong (2006) 138 Cal.App.4th Supp. 1.
In April 2008, Friedeck pled guilty to one count of felony possession of a controlled substance, Percocet. The trial court placed him on DEJ for 24 months provided he immediately obtains drug counseling and completes an AIDS education course.
On July 11, 2008, the probation department filed a violation report, alleging that on June 8, 2008, Friedeck was arrested for being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a). The report stated, "The defendant has not communicated with the Probation Dept. It is unknown if he has enrolled or participated in any treatment program." Under the heading "Prop. 36 eligibility," the report stated, "Given the present information, Defendant [is] not eligible pursuant to People v. Strong."
On July 17, 2008, Friedeck appeared in court on both the alleged DEJ violation and his June 8 arrest for being under the influence. His probation officer said that he is not eligible under Proposition 36 pursuant to People v. Strong. The probation officer told the court, "The defendant said that he did do the AIDS class and attended a couple of classes, but there's no evidence... that he ever enrolled in a diversion program."
Friedeck admitted he was in violation of the DEJ order, and the trial court referred the matter to probation for a sentencing report. The court also continued the arraignment on the new charge of being under the influence.
At the sentencing hearing, Friedeck's counsel submitted the matter on the probation report and an off-the-record discussion held at the bench. The trial court sentenced Friedeck to the middle term of two years in prison. The prosecutor said he would dismiss the under-the- influence charge. The matter was continued for a determination of custody credits.
A different judge presided over the custody credit hearing. At the hearing Friedeck asked for the opportunity to start in a Proposition 36 program. He said he lost his DEJ paperwork and did not know where to go. The trial court replied that it was only calculating custody credits, and that Friedeck would have to raise the question of Proposition 36 with the original sentencing judge.
The Attorney General argues that Friedeck waived Proposition 36 probation by failing to make a timely request. But Proposition 36 probation is mandatory for those who qualify. (People v. Esparza (2003) 107 Cal.App.4th 691, 699.) It is not a discretionary sentencing choice subject to waiver. (Ibid.)
Friedeck contends the trial court erred in finding he was not eligible for Proposition 36 based on his implied refusal of treatment.
Proposition 36, as codified in section 1210.1, subdivision (a), provides in part, "Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation." Subdivision (b)(4) of the section provides subdivision (a) shall not ...