People v. Garcia

120 Cal.Rptr.2d 725 (2002) 99 Cal.App.4th 38 The PEOPLE, Plaintiff and Respondent,

v.

Eric Patrick GARCIA, Defendant and Appellant.

No. C038797. Court of Appeal, Third District.

June 7, 2002. Review Granted August 28, 2002. Athena Shudde, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

[726] Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, and Tiffany S. Shultz, Deputy Attorney General, for Plaintiff and Appellant.

ROBIE, J.

In this case we consider whether a misdemeanor petty theft count based upon the theft of drugs, the possession of which is charged as a felony, disqualifies a defendant from the benefits of Proposition 36.

Defendant Eric Patrick Garcia pled guilty to possession of fentanyl, a controlled substance (Health & Saf.Code, § 11350, subd. (a)), and misdemeanor petty theft of fentanyl (Pen.Code, § 484).[1] The trial court found defendant ineligible for drug treatment under Proposition 36, the "Substance Abuse and Crime Prevention Act of 2000" (hereafter Proposition 36 or the Act). Defendant was placed on probation on a number of conditions, including that he spend six months in county jail. He appeals, contending the trial court erred by denying him the benefits of drug treatment and by imposing incarceration as a condition of probation, in violation of the Act. We agree and shall remand for resentencing.

FACTUAL AND PROCEDURAL

BACKGROUND

Defendant was employed as a licensed vocational nurse at a nursing home. One morning at 5:00 a.m., when defendant had not returned from a 3:00 a.m. restroom visit, two nursing assistants forced open the restroom door. The nurses found defendant blue and unconscious, with four to six respirations per minute. He had a syringe in his left hand, fresh needle marks and blood on his right wrist, and needle marks on his left arm. Four fentanyl patches and two more syringes were found near him; three of the four patches had been opened and drained. After emergency personnel had revived defendant, it was determined that the fentanyl patches and needles had been taken from the nursing home's supplies. Defendant admitted taking the patches and a syringe and injecting himself with the fentanyl. He also admitted using Valium before coming to work, plus using Vicodin, Tylenol, codeine and trazodone throughout his shift.