Filed 10/3/13
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,                                                      C068288

                  Plaintiff and Respondent,              (Super. Ct. No. 10F03974)

        v.

ZEFRAM LAJOS JUHASZ,

                  Defendant and Appellant.




       APPEAL from a judgment of the Superior Court of Sacramento County, Marjorie
Koller, Judge. Reversed with directions.

      Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and
Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Zefram Lajos Juhasz appeals from a judgment of the Sacramento
County Superior Court sending him to state prison for 16 months after findings by two
judges that he was unamenable for Proposition 36 drug treatment within the meaning of
Penal Code section 1210.1, subdivisions (b)(4) and (b)(5).1 Defendant contends the
evidence is insufficient to support the unamenability findings under either subdivision.
We agree.
                                   PROPOSITION 36
       Penal Code section 1210.1, subdivision (a) provides: “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. . . .” Subdivision (b) of
section 1210.1 sets forth five categories of defendants excluded from subdivision (a). Of
relevance here are subdivisions (b)(4) and (b)(5) of section 1210.1 (hereafter
subdivision (b)(4) or (b)(5)). Subdivision (b)(4) excludes “[a]ny defendant who refuses
drug treatment as a condition of probation.” Subdivision (b)(5) excludes “[a]ny
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. . . .”
                               PROCEDURAL HISTORY
       On July 13, 2010, defendant pleaded no contest to one count of possession of
methamphetamine with the understanding he would be placed on probation conditioned
upon his being referred for drug treatment pursuant to Proposition 36. It was further
agreed that if he did not complete the Proposition 36 program, he would be sentenced to



1 “Proposition 36 is codified in Penal Code sections 1210, 1210.1, and 3063.1 and
Health and Safety Code section 11999.4 et seq. [Citation.]” (People v. Canty (2004)
32 Cal.4th 1266, 1273, fn. 1.)

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state prison for 16 months. Defendant was ordered to report to the probation department
for Proposition 36 enrollment once he was released from a parole hold that had been
placed on him.
       Defendant was released from the parole hold on September 7, 2010, and on
September 9, 2010, he reported to the probation department for enrollment under
Proposition 36. In a progress report dated September 17, 2010, the probation department
determined defendant was ineligible for Proposition 36 treatment because of his two prior
unsuccessful attempts at Proposition 36 treatment, one in 2002 (case No. 02F06177) and
the other in 2004 (case No. 04F00902).
       Also on September 17, 2010, defendant appeared before Judge Gary Ransom for
consideration of his eligibility for Proposition 36 treatment. The appearance was brief:
Judge Ransom called the case, the prosecutor informed Judge Ransom that “[defendant]
is the individual who‟s already had two courses of Prop. 36,” and the court stated, “I find
you to be unamenable.” Judge Ransom then ordered the case continued to October 5,
2010, for sentencing.
       Following several continuances, defendant appeared before Judge Marjorie Koller
on May 27, 2011, for sentencing and for a hearing on a motion defendant had filed
seeking reinstatement in the Proposition 36 program. The basis for defendant‟s motion
was that Judge Ransom had failed to afford defendant a full hearing on his amenability
for treatment. Judge Koller upheld Judge Ransom‟s finding of unamenability and
independently concluded defendant was ineligible for Proposition 36 treatment under
both subdivisions (b)(4) and (b)(5). Judge Koller reasoned that defendant was
“ineligible” under subdivision (b)(4) because he had been deleted from Proposition 36
treatment in his 2002 and 2004 cases, each deletion constituting a refusal to participate in
the Proposition 36 program. Judge Koller also reviewed defendant‟s prior record and
concluded he was “unamenable to treatment [under subdivision (b)(5)], in that he has had



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many opportunities and squandered them all.”2 Judge Koller then imposed the 16-month
prison term.
                                       DISCUSSION
               Defendant’s Purported Ineligibility Under Subdivision (b)(4)
       Subdivision (b)(4) excludes from Proposition 36 treatment “[a]ny defendant who
refuses drug treatment as a condition of probation.” Defendant does not dispute that his
deletions from Proposition 36 treatment in 2002 and 2004 were refusals of drug
treatment. Instead, defendant‟s position is that any refusal in a prior case does not
operate under subdivision (b)(4) as a refusal in a future case. He is correct. As we
explain below, to construe subdivision (b)(4) as did Judges Ransom and Koller would be
contrary to the intent of the voters in passing Proposition 36.
       “In construing a statute, „[t]he fundamental rule is that a court “should ascertain
the intent of the Legislature so as to effectuate the purpose of the law.” ‟ [Citation.]”
(People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.) “ „The manifest purpose behind
Proposition 36 was to divert into treatment those persons whose only offenses were
nonviolent drug possession offenses. Proposition 36 explained its intent, among other
things, to (1) “divert from incarceration into community-based substance abuse treatment
programs nonviolent defendants, probationers and parolees charged with simple drug
possession or drug use offenses”; and (2) “enhance public safety by reducing drug-related
crime and preserving jails and prison cells for serious and violent offenders, and to
improve public health by reducing drug abuse and drug dependence through proven and
effective drug treatment strategies.” ‟ [Citations.]” (People v. Dagostino (2004)



2  As cited by Judge Koller, defendant‟s prior record was the following: “[H]e has four
state prison commitments for drugs, possession and possession for sale. [¶] He has one
state prison, non-drug 459 in 2006. [¶] He was committed to state prison on all of those
matters on the same date, August 28th of 2006. [¶] He has parole violations in ‟07, ‟08,
‟09, 2010 and 2011.”

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117 Cal.App.4th 974, 986-987.) Indeed, Proposition 36 “ „[a]nticipat[es] that drug
abusers often initially falter in their recovery,‟ ” which is why it “ „gives offenders
several chances at probation before permitting a court to impose jail time.‟ ” (Dagostino,
at p. 987.)
        In some instances a defendant‟s prior record of failure in treatment may be highly
relevant in determining his amenability to treatment. But if we were to accept
Judge Koller‟s construction of subdivision (b)(4), defendant‟s refusals in either of his
2002 and 2004 cases would forever render him ineligible for Proposition 36 treatment in
all future cases, notwithstanding any positive changes defendant might have made in the
interim. Such a result is inconsistent with Proposition 36‟s intent to provide continued
treatment for nonviolent drug offenders and its recognition that while such offenders
frequently initially falter in the program, they may still be successful in future attempts.
Consequently, we conclude that a defendant‟s refusal in a prior case cannot be used under
subdivision (b)(4) to exclude the defendant from Proposition 36 treatment in a future
case.
        That our construction is correct is bolstered by an analogous situation in People v.
Espinoza (2003) 107 Cal.App.4th 1069 (Espinoza). There the defendant, an illegal alien,
was convicted of possession of heroin (id. at p. 1071) but was denied Proposition 36
treatment by the trial court because he was “ „not really expressing a real desire to be in
it‟ ” (Espinoza, at p. 1072). The defendant appealed and the People argued, inter alia,
that the defendant was ineligible for Proposition 36 treatment under subdivision (b)(4)
“because he refused drug treatment as a condition of probation,” the refusal being his
failure to attend drinking driver programs in prior alcohol-related convictions. (Espinoza,
at p. 1073.) The appellate court rejected the argument, stating: “Setting aside our
substantial doubt that a drinking driver program qualifies as a „drug treatment program‟
for purposes of section 1210.1, subdivision (b)(4) simply means that the court may refuse
probation to a nonviolent drug offender when the offender refuses to accept drug

                                              5
treatment as a condition of his probation. A past refusal of drug treatment in some other
case . . . is immaterial under that subdivision.”3 (Espinoza, at p. 1073, fn. omitted.)
       From the foregoing, we conclude that a defendant‟s refusal of drug treatment in a
prior case or cases cannot be used pursuant to subdivision (b)(4) to exclude him or her
from Proposition 36 treatment in a different case.
             Defendant’s Purported Ineligibility under Subdivision (b)(5)
       Subdivision (b)(5) excludes from Proposition 36 treatment “[a]ny 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.” Section 1210,
subdivision (b) defines “drug treatment” as “a state licensed or certified community drug
treatment program, which may include one or more of the following: drug education,
outpatient services, narcotic replacement therapy, residential treatment, detoxification
services, and aftercare services.” “Clear and convincing evidence” means “evidence
which is so clear as to leave no substantial doubt and as sufficiently strong to command
the unhesitating assent of every reasonable mind. [Citations.] It has been said that a
preponderance calls for probability, while clear and convincing proof demands a high
probability.” (In re Terry D. (1978) 83 Cal.App.3d 890, 899.)
       Here, with respect to defendant‟s unamenability to drug treatment within the
meaning of subdivision (b)(5), Judge Koller stated: “I‟ve previously indicated that the
defendant is unamenable to treatment, in that he has had many opportunities and
squandered them all. [¶] His full record I indicated earlier.” While it is true that



3 The appellate court did, however, uphold the trial court‟s ruling excluding the
defendant from Proposition 36 on the ground there was a “substantial likelihood of
imminent deportation.” (Espinoza, supra, 107 Cal.App.4th at p. 1076.)

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defendant‟s record supported the conclusion that he had “squandered” opportunities for
treatment in the past cases, and that fact is not without significance, the court gave no
consideration in the present case to what treatment might now be available to defendant
within the meaning of section 1210, subdivision (b). Indeed, the court acknowledged that
it had received a request by defendant for inpatient or residential treatment because he
believed that was what he needed. However, the court did not pursue the matter further,
noting simply that defendant was in any event ineligible for Proposition 36 treatment
under subdivision (b)(4), as if to suggest that no matter the prospects for success in the
future, his prior missteps foreclosed consideration of further treatment attempts.
Whatever appeal the court‟s logic might have in the abstract, it is at odds with the intent
of Proposition 36 as expressed in subdivision (b)(5). The evidence is insufficient to
support a finding that defendant was disqualified from Proposition 36 treatment pursuant
to subdivision (b)(5).
                                      DISPOSITION
       The Sacramento County Superior Court‟s finding that defendant was unamenable
for Proposition 36 treatment is vacated and the judgment sentencing defendant to state
prison for 16 months is reversed. The matter is remanded to the Sacramento County
Superior Court for further proceedings on defendant‟s eligibility for Proposition 36 drug
treatment.


                                                            RAYE               , P. J.

We concur:


         ROBIE              , J.


         MURRAY             , J.



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