Trial court erred by not expressly considering defendant’s eligibility for Proposition 36 drug treatment (Pen. Code, § 1210.1). In August 2014, appellant pleaded no contest to felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and received probation with nine months in jail. The probation officer submitted a written recommendation (but not a formal report) stating that appellant was ineligible for Proposition 36 drug treatment and the court made no mention of such treatment at sentencing. On appeal, Bradshaw claimed the court erred in not ordering drug treatment pursuant to section 1210.1. Held: Reversed and remanded. Under Proposition 36, a trial court must order probation and drug treatment, instead of incarceration, for qualified defendants who commit nonviolent drug possession offenses. Here, the trial court failed to determine whether appellant was disqualified from such treatment under one of the factors set forth in section 1210.1, subdivision (b). Remand is required so the trial court can make this eligibility determination.

Although appellant did not file a Proposition 47 resentencing petition, in the interest of judicial economy, on remand the trial court should decide whether to reduce appellant’s felony drug offense to a misdemeanor. When appellant committed his offense, possession of methamphetamine was punishable alternately as either a misdemeanor or a felony (Health & Saf. Code, § 11377, subd. (a)). After appellant was sentenced, but before his case became final, voters approved Proposition 47. Under its provisions, certain felony drug offenses were reduced to misdemeanors, unless the defendant has a prior conviction for a “super strike” or an offense requiring mandatory sex offender registration under Penal Code section 290, subdivision (c). Penal Code section 1170.18, provides a procedure whereby qualified defendants may seek reduction of a qualified felony to a misdemeanor. Here, Bradshaw requested to have his case remanded for Proposition 47 resentencing. Under these circumstances, Courts of Appeal have held that Proposition 47 does not provide for automatic resentencing and have concluded that defendants must file a petition for resentencing under Penal Code section 1170.18 in the trial court. However, because this case will be remanded for a Proposition 36 drug treatment determination, the Court of Appeal deemed appellant to have petitioned for resentencing under section 1170.18, and directed the trial court to consider the request in the interest in judicial economy.

The waiver doctrine does not apply to Proposition 36 drug treatment eligibility determinations. The Attorney General argued appellant forfeited his Proposition 36 probation claim by failing to raise it at sentencing. However, the “waiver doctrine” applies to claims involving the trial court’s failure to properly make or articulate a discretionary sentencing choice. (People v. Scott (1994) 9 Cal.4th 331.) Placement of eligible defendants in a Proposition 36 drug program is not discretionary, it is mandatory if the defendant is not disqualified, so the waiver doctrine does not apply.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F070137.PDF