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Name: In re Taylor
Case #: B161535
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 02/04/2003
Subsequent History: Rehg. denied 2/21/03. Rev. denied 5/21/03.
Summary

When a nonviolent drug offender only twice violates his drug-related conditions of probation, the court doesn’t have discretion to impose jail time. Here appellant pled guilty to felony possession of cocaine and was placed on probation with certain conditions. Two months later, Proposition 36 (Pen. Code, sec. 1210.1) took effect. Prop 36 applied to appellant, a nonviolent drug offender who was already on probation. Appellant then violated his probation by failing to appear for several drug tests, and a second time by testing positive for cocaine and failing to report. For the first violation, the court reinstated appellant on probation. The second time, the trial court determined that the failure to report was not a drug-related condition of probation that fell under Prop 36’s provisions barring incarceration. It then reinstated probation, but also imposed 180 days of county jail time. An offender under Prop 36 loses the benefit of treatment in place of incarceration time only upon a third violation of a “drug-related condition of probation” (Pen. Code, sec. 1210.1, subd. (e)(2)(F)), whereupon the trial court then regains its discretion to impose jail or prison time. Prop 36 does not extend the same benefit to non-drug related conditions of probation. Drug-related conditions as defined in Prop 36 includes a “drug treatment regimen.” (Pen. Code, sec. 1210.1, subd. (f).) This court finds the probation condition that appellant report to the probation officer a logical extension of “drug treatment regimen,” because “one cannot be tested unless one shows up for the test.”