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Name: People v. Cano
Case #: B152598
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/24/2002
Subsequent History: Rev. denied, opinion withdrawn by order of court 7/10/02. Depublished.
Summary

Appellant admitted a violation of his probation for a conviction of cocaine possession. The record did not state the nature of the violation. At his sentencing hearing, the trial court refused to sentence appellant pursuant to Proposition 36 because it concluded appellant “fell outside the realm.” The appellate court here reversed. The one “non-drug event” which might have disqualified appellant was a drunk driving conviction which was neither admitted nor proved as a probation violation. It is the prosecutor’s responsibility to create a record in which the disqualifying violation is proved or admitted, or the record will be construed against the prosecution. Therefore, appellant was entitled to the benefits of Proposition 36, and reversal was required.