People v. Jackson CA2/6

Filed 1/28/14 P. v. Jackson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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

1 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