The People v. Juhasz

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.

1

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