People v. Superior Court

The People have filed a petition for writ of mandate seeking to set aside an order placing defendant on probation pursuant to Proposition 36. We hold that defendant is not eligible for drug treatment probation pursuant to Proposition 36. In so holding, we determine that the five-year washout period of Penal Code section 1210.1, subdivision (b)(1), 1 must immediately precede the current drug possession offense in order for defendant to be eligible for drug treatment. We also find that defendant was ineligible for drug treatment probation under subdivision (b)(2) of section 1210.1. Accordingly, we will grant the People’s petition for writ of mandate and order that the trial court set aside its order granting probation.

Facts

On May 8, 2001, the People filed a felony complaint charging defendant with possession of methamphetamine and alleging two strikes for robbery convictions in 1984 and 1985. According to the testimony at the preliminary hearing, defendant solicited an act of prostitution, and during the subsequent search methamphetamine was discovered. Following the preliminary hearing, the People filed an information which added a misdemeanor violation of soliciting…