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Name: People v. Harbison
Case #: B251492
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/21/2014

Where defendant has two prior failures in Proposition 36 drug treatment programs and is found unamenable to further treatment, trial court’s discretion is limited to imposing 30 days in jail. Harbison was convicted of possessing methamphetamine. He had prior drug offenses, for which he had participated in several drug treatment programs. The trial court found him unamenable to further drug treatment under Proposition 36 (Pen. Code, § 1210.1), granted probation and imposed 120 days in jail. Harbison appealed, claiming the court was limited to imposing a 30-day jail sentence. Held: Reversed. Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, created an alternative sentencing scheme for certain narcotics offenses. It mandates probation and drug treatment for qualified defendants. The statutory implementation of the Act lists five classes of defendants who are ineligible for treatment. As applies here, section 1210.1, subdivision (b)(5) disqualifies those who have two prior failures in Proposition 36 programs and who are found by the court to be unamenable to any further treatment. It provides as a consequence for such a finding that the defendant be sentenced to 30 days in jail. [Editor’s Note: The dissent found the majority’s result absurd, because it may result in repeat narcotic offenders receiving less punishment than Prop. 36 probationers; it fails to encourage drug treatment or to deter recidivism.]