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Name: People v. Sizemore
Case #: B200408
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 07/09/2009

Penal Code section 1210.1 (drug treatment probation), does not allow for the defendant to determine the “appropriate” treatment, only the court “may intensify or alter the drug treatment plan.” After appellant’s deferred entry of judgment for violation of Health and Safety Code section 11377, subdivision (a) was terminated as a result of appellant’s admitted use of methamphetamine, appellant was granted drug treatment probation under Penal Code section 1210.1 (Prop. 36 probation). He failed to comply with terms of probation and at a second violation of probation proceeding, appellant indicated that he wished to opt out of Prop. 36 and be placed on regular probation with a live-in program. The court agreed, observing that it did not appear that appellant would be successful on Prop. 36 probation. Under section 1210.1, although a defendant may not dictate the terms of his treatment, in determining whether a defendant is unamenable for continued Prop. 36 probation, the court may consider whether defendant has asked to be removed from the program. (People v. Campbell (2004) 119 Cal.App.4th 1279 Here, because the court, rather than appellant, determined that appellant was not suitable for Proposition 36 treatment, it was not error to permit appellant to opt out.