Hazle

Proposition 36 ordinarily allows eligible drug users three chances at probation before a trial court may send a defendant to prison, although the relevant statutes do not guarantee this result. In this case defendant’s second and third probation revocation petitions were adjudicated at one time, a common practice we have endorsed. (People v. Budwiser (2006) 140 Cal.App.4th 105 [ 44 Cal.Rptr.3d 296 ] (Budwiser).) However, in this case the facts supporting the third revocation petition took place before the second petition was filed. Nevertheless, when the trial court sustained the second and third petitions, it concluded defendant was no longer eligible for probation.

Defendant’s basic position is that he was deprived of a third chance at probation, in violation of at least the spirit of Proposition 36, if not its text. In People v. Tanner (2005) 129 Cal.App.4th 223 [ 28 Cal.Rptr.3d 201 ] (Tanner) the Attorney General conceded the basic legal point defendant raises in this appeal. (Id. at p. 235.) In a supplemental brief the Attorney General has advised this court that it views Budwiser, supra, 140 Cal.App.4th 105 , as controlling on the facts of this case because “the…