Esparza

This case presents two questions concerning eligibility for drug treatment programs established by Proposition 36. First, may a trial court send a defendant to prison for violating probation in a nondrug case when the violation is a new conviction for a drug possession felony? Second, if the trial court does send a defendant to prison for violating probation in the nondrug case, is the defendant still eligible for Proposition 36 drug treatment in the drug possession case?

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Act), was approved by voters on November 7, 2000. The Act took effect on July 1, 2001, and is codified at Penal Code sections 1210, 1210.1, 3063.1, and division 10.8 (commencing with § 11999.4) of the Health and Safety Code. Proposition 36 requires the court to grant probation and drug treatment to any defendant convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation. (§ 1210.1, subd. (a).)

In this case, defendant was on probation for a non-drug-related felony, with execution of a three-year prison sentence suspended, at the time he committed the drug possession felony. The trial…