Filed 1/28/14 P. v. Jackson CA2/6
                NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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publication or ordered published for purposes of rule 8.111.5.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                  DIVISION SIX


THE PEOPLE,                                                                     2d Crim. No. B249071
                                                                              (Super. Ct. No. F485679)
     Plaintiff and Respondent,                                                (San Luis Obispo County)

v.

CHARLES WESLEY JACKSON, SR.

     Defendant and Appellant.



                   Charles Wesley Jackson was convicted by plea of possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and appeals from the
order granting him probation after the trial court found he was not amenable to
Proposition 36 drug treatment (Pen. Code, § 1210.1, subd. (b)(5)). We affirm.
                                                  Proposition 36
                   Proposition 36 mandates probation and drug treatment, instead of
incarceration, for persons convicted of a "nonviolent drug possession offense. . . ."
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(Pen. Code, § 1210.1, subd. (a).) Subdivision (b) of section 1210.1, however,
excludes five categories of defendants from Proposition 36 drug treatment. Of
relevance is subdivision (b)(4) which excludes "[a]ny defendant who refuses drug

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    All further statutory references are to the Penal Code.
treatment as a condition of probation." Subdivision (b)(5) excludes "any defendant
who (A) has two separate convictions for nonviolent drug possession offenses, (B)
has participated in two separate courses of drug treatment pursuant to subdivision (a),
and (C) is found by the court, by clear and convincing evidence, to be unamenable to
any and all forms of available drug treatment. . ."
              It is settled that the failure to report to drug treatment constitutes a
refusal to undergo drug treatment. (People v. Guzman (2003) 109 Cal.App.4th 341,
349-350.) Steve Berg, supervisor of the San Luis Obispo County Drug and Alcohol
Treatment Program, testified that appellant was twice referred to his agency in 2004
and 2005 for Proposition 36 drug treatment. On the first occasion, appellant threw a
clipboard and walked out of the facility. On the second referral, appellant was
extremely contentious, refused to sign any paperwork, and accused Berg of using a
one-way mirror and camera to observe him.
              Appellant never completed the intake process. Although appellant was
referred for Proposition 36 orientation multiple times, appellant failed to show up
most of the time. In November 2005, he tested positive for drugs and later admitted
using amphetamine. Berg could not recommend a treatment plan in 2006 because
appellant refused to participate.
              The prosecution argued that appellant's failure to participate in court-
ordered drug treatment rendered him unamenable to treatment. Appellant claimed
that he was sorry for his past actions and was clean and sober during his
incarceration. Appellant wrote to the court that his father had recently died and that
he now realized that he had a drug problem.
              The trial court found that appellant was granted Proposition 36
treatment three times and failed to appear at intake or review hearings. In each case,
appellant was returned to custody on a warrant and waived treatment. "[B]ased on
his waivers in all [three] cases, [appellant] essentially asked to be removed from the




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program. [¶] So taking into consideration all of the evidence, I do find that there is
clear and convincing evidence that he is not amendable to treatment."
                                       Discussion
              Appellant contends that he is entitled to Proposition 36 treatment as a
matter of right despite his past refusal to undergo treatment. (See People v. Juhasz
(2013) 220 Cal.App.4th 133, 139.) "In some instances a defendant's prior failure in
treatment may be highly relevant in determining his present amenability to
treatment." (Id., at p. 138.)
              Appellant has a long criminal history (33 convictions over 30 years)
that includes a conviction for robbery, theft-related offenses, corporal punishment on
a child and felony child abuse, passing bad checks, assaultive behavior, false
information to a police officer, disturbing the peace, and nine drug offenses.
Appellant was referred to Proposition 36 drug treatment on three prior occasions. In
each instance, he was uncooperative, returned to custody on a warrant, and waived
further treatment.
              The trial court did not err in rejecting appellant's claim that he has
changed his ways and was amenable to treatment. After appellant pled no contest to
possession of methamphetamine and was released, he failed to report to probation. A
bench warrant issued and probation was revoked on June 30, 2013. Where the
defendant's conduct reveals "the disingenuousness of his request for drug treatment,"
the trial court may find him ineligible for Proposition 36 treatment. (People v.
Guzman, supra, 109 Cal.App.4th at p. 349.)
              In People v. Castagne (2008) 166 Cal.App.4th 727 the trial court found
that defendant was not amenable to treatment after defendant was granted
Proposition 36 probation in two concurrent cases and picked up two more
methamphetamine convictions. (Id., at p. 734.) Despite her pregnancy and pending
jail commitment, defendant continued to use drugs, putting her unborn baby at risk.
(Id., at p. 730.) The trial court found that defendant's intentions to quit using drugs



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were sincere but inadequate to prevent her from faltering. (Id., at p. 735.) The Court
of Appeal reversed on the ground that section 1210.1, subdivision (b)(5) requires two
separate courses of drug treatment. (Id., at p. 733.) Defendant received concurrent
treatment for two separate offenses which counted as only one course of treatment.
The court noted that defendant was sincere about seeking treatment, was
participating in treatment, and "the record does not establish with certainty that
defendant's acts and omissions evinced a complete refusal to undergo drug
treatment." (Id., at p. 736.)
                Unlike Castagne, appellant was granted Proposition 36 probation three
times but failed to enroll in a court-ordered drug treatment program. "We are
persuaded that the voters did not intend Proposition 36 to apply to a convicted drug
offender, such as [appellant], who has been placed repeatedly on Proposition 36
probation and has repeatedly violated the conditions of such probation by refusing to
enroll in a drug treatment program. . . " (People v. Johnson (2003) 114 Cal.App.4th
284, 303-304.)
                Appellant requests that we reweigh the evidence and find, as a matter
of law, there is no clear and convincing evidence that he is unamenable to treatment.
The "clear and convincing" standard in section 1210.1, subdivision (a)(5) is for the
edification and guidance of the trial court, and was not intended as a standard for
appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) "'The sufficiency of
evidence to establish a given fact, where the law requires proof of the fact to be clear
and convincing, is primarily a question for the trial court to determine, and if there is
substantial evidence to support its conclusion, the determination is not open to review
on appeal. [Citations.]" (Ibid.; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §
371, p. 428.)
                                       Conclusion
                Section 1210.1, subdivision (b)(5) gives a defendant three chances at
rehabilitation, with increasing penalties for conviction, so as to provide a strong



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incentive to stop his or her drug usage. (People v. Hazle (2007) 157 Cal.App.4th
567, 572-573; People v. Guzman, supra, 109 Cal.App.4th at p. 348.) Appellant was
granted three Proposition 36 chances and refused to complete a court-ordered drug
treatment program. Ample evidence supports the finding that appellant is not
amenable to treatment within the meaning of section 1210.1, subdivision (b)(5).
             The judgment is affirmed.
             NOT TO BE PUBLISHED.


                                                      YEGAN, J.


We concur:


             GILBERT, P.J.


             PERREN, J.




                                         5
                            Jacquelyn H. Duffy, Judge

                    Superior Court County of San Luis Obispo

                       ______________________________


             Laurie A. Thrower, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A.
Taryle, Supervising Deputy Attorney General, Kimberley J. Baker-Guillemet,
Deputy Attorney General, for Plaintiff and Respondent.




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