Exclusion from Proposition 36 drug probation under Penal Code section 1210.1, subdivision (b)(5), must be based on defendant’s participation in two separate courses of drug treatment, and concurrent treatment for two separate offenses does not constitute two separate courses of treatment. At a consolidated sentencing hearing for two separate cases where appellant had pled guilty to possession of methamphetamine, the court placed her on Proposition 36 probation. The appellate court held that for the purpose of Penal Code section 1210.1, subdivision (b)(5), holding that a defendant is ineligible for drug probation if “she has participated in two separate courses of drug treatment pursuant to subdivision (a),” this action constituted only one course of treatment.
Under the exclusion provision, the court must find clear and convincing evidence of unamenability for treatment. The court further found that despite appellant’s initial hostility toward residential treatment, the record did not establish a complete refusal to undergo drug treatment supporting an exclusion for drug probation treatment pursuant to subdivision (b)(4) of the statute which says, “[a]ny defendant who refuses drug treatment as a condition of probation,” is excluded.