Garcia

In this case we consider whether a misdemeanor petty theft count based upon the theft of drugs, the possession of which is charged as a felony, disqualifies a defendant from the benefits of Proposition 36.

Defendant Eric Patrick Garcia pled guilty to possession of fentanyl, a controlled substance (Health & Saf.Code, § 11350, subd. (a)), and misdemeanor petty theft of fentanyl (Pen.Code, § 484). [1] The trial court found defendant ineligible for drug treatment under Proposition 36, the "Substance Abuse and Crime Prevention Act of 2000" (hereafter Proposition 36 or the Act). Defendant was placed on probation on a number of conditions, including that he spend six months in county jail. He appeals, contending the trial court erred by denying him the benefits of drug treatment and by imposing incarceration as a condition of probation, in violation of the Act. We agree and shall remand for resentencing.

BACKGROUND

Defendant was employed as a licensed vocational nurse at a nursing home. One morning at 5:00 a.m., when defendant had not returned from a 3:00 a.m. restroom visit, two nursing assistants forced open the restroom door. The nurses found defendant blue and…