Espinoza

Defendant Miguel Rafael Canceco Espinoza, an illegal alien subject to deportation, pleaded no contest to possession of heroin and was sentenced to 16 months in state prison. Defendant contends the trial court erred in denying him probation under the provisions of Proposition 36. In view of the substantial likelihood that defendant will be deported, we hold that probation is not mandatory under Proposition 36 because it is impossible to condition such probation on defendant’s completion of a drug treatment program. Accordingly, we affirm the judgment sentencing defendant to state prison.

Background

Defendant was arrested on April 6, 2002, after police found 2.57 grams of heroin and 1.9 grams of methamphetamine in his pants pocket during a consensual search of his person. At the time of his arrest, defendant gave police a false name. He was thereafter charged by information with possession of heroin (Health & Saf. Code, § 11350, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor obstruction of a police officer (Pen. Code, § 148, subd. (a)(1)). The complaint further alleged that defendant suffered one prior prison term (Pen.…