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Name: People v. Bauer
Case #: F059737
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 03/08/2011

The court has discretion to terminate Proposition 36 probation when a defendant makes no effort to comply with drug treatment, thereby implying a refusal of drug treatment as a condition of probation. After pleading guilty to possession of heroin and admitting three prior prison term enhancements, appellant was granted Proposition 36 probation for three years. Within two months a petition for violation of probation was filed alleging failure to report to the probation officer, failure to complete treatment, failure to register, and failure to complete AIDS education. He admitted the allegations and was reinstated on Proposition 36 probation. About a month later, a second petition alleging the same counts was filed. Following a revocation hearing, the court found appellant in violation and sentenced him to prison, finding the failure to report was “a non-Prop 36 violation.” The appellate court found no error. Under Penal Code section 1210.1, subdivision (d), Proposition 36 probation may be revoked if the court finds appellant unamenable to drug treatment. Here, there was nothing in the record to support a conclusion that appellant failed to report for drug testing, which would have been violation of a drug-related condition of probation (see In re Taylor (2003)105 Cal.App.4th 1394). Appellant simply failed to report. Further, appellant’s repeated violations indicated that he has refused drug treatment and thus, was unamenable for drug treatment probation.