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Name: People v. Harris
Case #: D052257
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/11/2009

A defendant convicted of transportation of cocaine, with a jury finding that the transportation is for personal use, must receive Proposition 36 probation, assuming none of the disqualifying factors under Penal Code section 1210.1, subdivision (b) exist. Appellant was convicted of transportation of cocaine base. The jury also specifically found true that the transportation was for personal use, within the meaning of Penal Code section 1210, subdivision (b). After a bifurcated proceeding, the court found true 7 prior prison term enhancements and 3 prior drug convictions and sentenced appellant to 17 years in state prison. The appellate court found that under Penal Code section 1210.1, a defendant convicted of a nonviolent possession offense shall receive probation and that placement in the Proposition 36 drug treatment program is neither discretionary with the trial court nor subject to the waiver doctrine. Accordingly, the court ordered sentence vacated and the matter remanded for resentencing (with a grant of drug treatment probation).