California Court of Appeals, Third District, Sacramento
APPEAL from a judgment of the Superior Court of Sacramento County No. 10F03974, Marjorie Koller, Judge.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
RAYE, P. J.
Defendant Zefram Lajos Juhasz appeals from a judgment of the Sacramento County Superior Court sending him to state prison for 16 months after findings by two judges that he was unamenable for Proposition 36 drug treatment within the meaning of Penal Code section 1210.1, subdivisions (b)(4) and (b)(5). Defendant contends the evidence is insufficient to support the unamenability findings under either subdivision. We agree.
Penal Code section 1210.1, subdivision (a) provides: “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) of section 1210.1 sets forth five categories of defendants excluded from subdivision (a). Of relevance here are subdivisions (b)(4) and (b)(5) of section 1210.1 (hereafter subdivision (b)(4) or (b)(5)). Subdivision (b)(4) excludes “[a]ny defendant who refuses drug treatment as a condition of probation.” Subdivision (b)(5) excludes “[a]ny defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210....”
On July 13, 2010, defendant pleaded no contest to one count of possession of methamphetamine with the understanding he would be placed on probation conditioned upon his being referred for drug treatment pursuant to Proposition 36. It was further agreed that if he did not complete the Proposition 36 program, he would be sentenced to state prison for 16 months. Defendant was ordered to report to the probation department for Proposition 36 enrollment once he was released from a parole hold that had been placed on him.
Defendant was released from the parole hold on September 7, 2010, and on September 9, 2010, he reported to the probation department for enrollment under Proposition 36. In a progress report dated September 17, 2010, the probation department determined defendant was ineligible for Proposition 36 treatment because of his two prior unsuccessful attempts at Proposition 36 treatment, one in 2002 (case No. 02F06177) and the other in 2004 (case No. 04F00902).
Also on September 17, 2010, defendant appeared before Judge Gary Ransom for consideration of his eligibility for Proposition 36 treatment. The appearance was brief: Judge Ransom called the case, the prosecutor informed Judge Ransom that “[defendant] is the individual who’s already had two courses of Prop. 36, ” and the court stated, “I find you to be unamenable.” Judge Ransom then ordered the case continued to October 5, 2010, for sentencing.
Following several continuances, defendant appeared before Judge Marjorie Koller on May 27, 2011, for sentencing and for a hearing on a motion defendant had filed seeking reinstatement in the Proposition 36 program. The basis for defendant’s motion was that Judge Ransom had failed to afford defendant a full hearing on his amenability for treatment. Judge Koller upheld Judge Ransom’s finding of unamenability and independently concluded defendant was ineligible for Proposition 36 treatment under both subdivisions (b)(4) and (b)(5). Judge Koller reasoned that defendant was “ineligible” under subdivision (b)(4) because he had been deleted from Proposition 36 treatment in his 2002 and 2004 cases, each deletion constituting a refusal to participate in the Proposition 36 program. Judge Koller also reviewed defendant’s prior record and concluded he was “unamenable to treatment [under subdivision (b)(5)], in that he has had many opportunities and squandered them all.” Judge Koller then imposed the 16-month prison term.
Defendant’s Purported Ineligibility Under ...