1210.1 Subdivision (b) (5) Sentencing HELP need advice Sentencing matter

[pennypenn]

A friend of mine recently was reinstated to prop 36. He has already successfully completed two drug programs, the last time in 2003. He was arrested again for possession a month ago, while he was in jail I was researching to find out if he would be eligible again for Prop 36. That was when I found under the California Penal Code that if a person has been through 2 previous drug programs for simple possession successfully completing both, and ends up getting popped a third time, that the judge can find them unamendable and sentence them to 30 days in jail instead of wasting more tax dollars on a program. I was a little surprised that the judge in Orange County sentenced him to prop 36. Now on to my question:

He hasn't reported to his Probation Officer, and will be probably be violated when he does. Considering the fact that he fits the profile under the penal code as a person who is unamendable, can he request jail time instead of a program...and be assured the judge won't still sentence him to a program after he gets out, as is what happens if the person flat refuses to participate in a rehab program? part 2 to this question, can he before being officially violated go back to court and ask for a modification of sentencing to 30 days in jail, instead of prop 36?

 

[The Occultist]

As part of his probation, his was probably required to alert his PO about the mere contact with other police officers, not just being convicted. He could already be in violation by having not reported this to his PO.

 

[Shay-Pari'e]

A friend of mine recently was reinstated to prop 36. He has already successfully completed two drug programs, the last time in 2003. He was arrested again for possession a month ago,

Your friend did not successfully complete rehab. Don't count on prop 36 for your friend again. Your friend cannot request anything . This is solely up to the judge,

 

[pennypenn]

Here is the Penal Code excerpt Please tell me if it means what I said?

I pretty much don't care anymore what happens to HIM. He's being stupid anyway. Can I ask you this lawyers, is the California Penal Code pretty accurate? Now I just want to know because I'm curious and other people are too.

1210.1. (a) Notwithstanding any other provision of law, and except
as provided in subdivision (b), any person convicted of a nonviolent
drug possession offense shall receive probation. As a condition of
probation the court shall require participation in and completion of
an appropriate drug treatment program. The court shall impose
appropriate drug testing as a condition of probation. The court may
also impose, as a condition of probation, participation in vocational
training, family counseling, literacy training and/or community
service. A court may not impose incarceration as an additional
condition of probation. Aside from the limitations imposed in this
subdivision, the trial court is not otherwise limited in the type of
probation conditions it may impose. Probation shall be imposed by
suspending the imposition of sentence. No person shall be denied the
opportunity to benefit from the provisions of the Substance Abuse and
Crime Prevention Act of 2000 based solely upon evidence of a
co-occurring psychiatric or developmental disorder. To the greatest
extent possible, any person who is convicted of, and placed on
probation pursuant to this section for a nonviolent drug possession
offense shall be monitored by the court through the use of a
dedicated court calendar and the incorporation of a collaborative
court model of oversight that includes close collaboration with
treatment providers and probation, drug testing commensurate with
treatment needs, and supervision of progress through review hearings.
(b) Subdivision (a) shall not apply to any of the following:
(5) Any defendant who has two separate convictions for nonviolent
drug possession offenses, has participated in two separate courses of
drug treatment pursuant to subdivision (a), and is found by the
court, by clear and convincing evidence, to be unamenable to any and
all forms of available drug treatment, as defined in subdivision (b)
of Section 1210. Notwithstanding any other provision of law, the
trial court shall sentence that defendant to 30 days in jail.

(A) describes probation for drug offenders so (A) would not apply. If the person received 30 days what kind of probation would they have? Informal?

 

[outonbail]

I believe that he would still fall under the H & S section below, depending on what drug he was in possession of. So, he can be sentenced up to a year in county jail or state prison.
Do you know what the actual charges are that he is facing?

11377. (a) Except as authorized by law and as otherwise provided in
subdivision (b) or Section 11375, or in Article 7 (commencing with
Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who possesses any controlled substance
which is (1) classified in Schedule III, IV, or V, and which is not
a narcotic drug, (2) specified in subdivision (d) of Section 11054,
except paragraphs (13), (14), (15), and (20) of subdivision (d), (3)
specified in paragraph (11) of subdivision (c) of Section 11056, (4)
specified in paragraph (2) or (3) of subdivision (f) of Section
11054, or (5) specified in subdivision (d), (e), or (f) of Section
11055, unless upon the prescription of a physician, dentist,
podiatrist, or veterinarian, licensed to practice in this state,
shall be punished by imprisonment in a county jail for a period of
not more than one year or in the state prison.