Juhasz

Defendant Zeffam Lajos Juhasz appeals from a judgment of the Sacramento County Superior Court sending him to state prison for 16 months after findings by two judges that he was unamenable for Proposition 36 drug treatment within the meaning of Penal Code section 1210.1, subdivision (b)(4) and (5). Defendant contends the evidence is insufficient to support the unamenability findings under either subdivision. We agree.

PROPOSITION

Penal Code section 1210.1, subdivision (a) provides: “Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. . . .” Subdivision (b) of section 1210.1 sets forth five categories of defendants excluded from subdivision (a). Of relevance here is subdivision (b)(4) and (5) of section 1210.1 (hereafter subdivision (b)(4) or (b)(5)). Subdivision (b)(4) excludes “[a]ny defendant who refuses drug treatment as a condition of probation.” Subdivision (b)(5) excludes “[a]ny defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision…