Castagne

The trial court ruled that defendant was ineligible for Proposition 36 probation because it found she had participated in two separate courses of drug treatment and was unamenable to drug treatment (Pen. Code, § 1210.1, subd. (b)(5)). Defendant appeals, and the People concede the lower court committed error. The People, however, argue that we should affirm because the record, according to the People, supports a finding of ineligibility for Proposition 36 probation as a matter of law under section 1210.1, subdivision (b)(4). We agree that the lower court erred in finding defendant ineligible for Proposition 36 probation under section 1210.1, subdivision (b)(5), but we disagree with the People that the record unequivocally establishes defendant’s ineligibility under subdivision (b)(4). Accordingly, we reverse the finding of Proposition 36 probation ineligibility and remand for resentencing.

BACKGROUND

On October 2, 2003, defendant entered a guilty plea to one felony count of unlawfully possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), which was People v. Castagne (Super. Ct. Marin County, 2003, No. SC131106A). In a separately charged case, on November…