People v. SUPERIOR COURT (HENKEL)

I. Introduction

The People challenge the trial court’s order granting probation and imposing a drug treatment requirement on real party in interest Robert Otto Henkel. They argue that Henkel is not eligible for probation under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, § 1210 et seq.) because he has a prior strike (§ 1192.7, subd. (c)(18)) and, seven months before committing the drug possession offense in this matter, was convicted of committing another felony. We agree and, accordingly, grant the petition for a writ of mandate.

II. Factual and Procedural Background

Henkel was arrested on May 18, 2001, for possession of methamphetamine. He pled guilty and also admitted a prior strike. One of the terms of his plea agreement was that he would receive probation with a drug treatment requirement rather than incarceration, as permitted under Proposition 36.

However, Henkel has a history of prior convictions. On May 30, 1989, he was convicted of two counts of first degree burglary (§ 459), a strike (§ 667, subds. (b) - (i)) and one count of willful infliction of corporal injury upon a spouse (§ 273.5), a nonstrike felony. He was…