Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050601823
Pollak, J.
Defendant Donald Eugene Clark was convicted by a jury of three counts of transporting controlled substances. He argues that the trial court erred in finding him ineligible for treatment under the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, § 1210 et seq.) (Proposition 36). We find no merit to this contention and therefore shall affirm.
Background
There was substantial evidence of the following facts presented at trial. Officer Robert Gray of the Richmond Police Department testified that he was on duty on Monday, January 2, 2006, when he received a dispatch regarding a “possible suspect in a robbery case . . . in the area of Battery Street.” Officer Gray went to the reported location where he saw a car leaving the driveway. He saw defendant driving the car and wearing a “green camouflage jacket” matching the description of the robbery suspect. Officer Gray “blocked southbound traffic to effect a stop on the vehicle.” He told defendant that he matched the description of a “suspect that just robbed somebody a few blocks away.” When defendant got out of the car and the police conducted a pat search, a cellophane packet fell on the ground. Defendant was determined not to be the perpetrator of the robbery, but was searched further and “additional items of interest [were] taken from [defendant’s] right front pocket.”
Detective Augustine Vegas, who was also present when defendant was stopped and searched, also testified. When he saw the cellophane packet he believed it to contain powdered cocaine. He conducted the pat search of defendant and removed from his right front pocket “a clear sandwich baggie which appeared to have . . . eight individually wrapped bindles of . . . a brown or black tarry substance, and . . . a couple of bindles of white powder . . . .” “[I]n the same pocket in the same bag was 16 methadone pills . . . .” Defendant told Detective Vegas that he got the heroin and cocaine bindles from a “Mexican dude in the park.”
When defendant was transported to jail and removed his clothing, a bindle containing tar heroin fell from his right sleeve. Detective Vegas also found cocaine base and a glass pipe used for smoking crack cocaine in the pocket of defendant’s jacket. Defendant also had in his possession a pillbox with the name “David Cooper” written on a worn label, which contained 16 methadone pills. Finally, defendant had a bindle made of a one dollar bill, which had a brown powdery residue on it which Detective Vegas determined to be from heroin, and approximately $200 mainly in $20 bills.
While defendant was being booked, he told Detective Vegas that “he actually got the cocaine and the heroin . . . in a parking lot of . . . Auto Zone,” and that he had driven “a friend to the Auto Zone and that his friend left the methadone in his car.”
Detective Vegas testified as an expert on “usable quantities of cocaine base,” and stated that a usable quantity is “anywhere above one-tenth of a gram.” He testified as an expert on “usable quantities of heroin” that the amount recovered from defendant was usable. He also was deemed to be an expert on usable quantities of methadone and testified that the quantity recovered from defendant was usable. In addition to the methadone pills, the items found on defendant were determined to be 2.84 grams of “cocaine salt,” 4.22 grams of heroin, 3.10 grams of cocaine base, and .03 grams of heroin in the dollar bill.
Defendant was charged by information with three counts of selling or transporting controlled substances (Health & Saf. Code, § 11352, subd. (a)) and three counts of possessing controlled substances (Health & Saf. Code, § 11350, subd. (a)). Four prior convictions for selling or transporting controlled substances were alleged as enhancements on each of the first three counts. It was also alleged that he was ineligible for probation under Penal Code section 1203, subdivision (e)(4) due to his prior felony convictions.
The jury found defendant guilty of transporting heroin, methadone and cocaine base. No verdicts were returned on the alternative possession charges and those counts were dismissed pursuant to Penal Code section 956. Defendant admitted one of the prior felony convictions.
Defendant was sentenced to the midterm of four years on the first count, plus a consecutive three-year term for the prior conviction. The court imposed and stayed four-year terms on counts two and three. Defendant has timely appealed.
Discussion
Defendant argues that the trial court erred in denying him the benefit of probation under Proposition 36. At the sentencing hearing, defendant requested treatment in lieu of a prison sentence under the provisions of that measure. Defendant testified at the hearing that he had been using heroin for “years.” He was 48 years old at the time of sentencing and stated that he had been using drugs since he was 19. The only time during that period when he did not use drugs was when he was incarcerated. He stated that he was addicted to heroin, that the nine bindles of heroin with which he was arrested would last him “probably three, four days.”He said that immediately prior to his arrest he was smoking rock cocaine and heroin. He stated that he tries to buy enough drugs for multiple uses at any given time so that he does not “keep running back and forth in the streets . . . .”He gets a check for disability because he is schizophrenic. When he received his check, he bought the drugs that he had in his possession when he was arrested. He testified that the methadone belonged to a friend, David Cooper, and that he intended to return the pills. He stated that he did not intend to sell the heroin and that both the heroin and the rock cocaine were for his personal use. The $200 in his wallet he stated was what was left of his disability check after he paid his bills and bought drugs.
Defense counsel argued, “With respect to the methadone, . . . he wasn’t convicted of having anything but necessarily constructive possession of it. He is saying it was somebody else’s, that’s kind of somewhere between personal use and sales. I would ask the court to find that the nature of the methadone possession doesn’t prevent a finding of personal use and suitability for Prop. 36 treatment, for the cocaine and heroin, and I think the court could treat the methadone in a parallel manner under probation terms . . . I am asking the court to find that it was for personal use and to sentence Mr. Clark to Prop 36.”
The court found that defendant “failed to carry his burden by a preponderance of the evidence that the transportation of all of the drugs was for personal use.”
“Proposition 36, which was adopted by the voters in the November 2000 election, mandates probation and drug treatment for certain nonviolent drug offenders but excludes from the program other offenders—such as petitioner—who have previously committed serious or violent felonies and have not remained free of prison custody for five years.” (In re Varnell (2003) 30 Cal.4th 1132, 1135.) “Proposition 36 mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance.” (People v. Canty (2004) 32 Cal.4th 1266, 1275.)
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. . . .” “The term ‘nonviolent drug possession offense’ means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8.” (Pen. Code, § 1210, subd. (a).)
A “defendant has the burden of proving that the possession or transportation was for personal use.” (People v. Dove (2004) 124 Cal.App.4th 1, 10.) We review the trial court’s finding on this issue to determine if it was supported by substantial evidence. (Ibid.)
Defendant argues that the trial court’s ruling that he failed to prove that “the transportation of all of the drugs was for personal use” indicates that the court believed defendant was ineligible for Proposition 36 sentencing because he possessed the methadone pills for the use of someone other than himself. Defendant then argues that “personal use” as these words appear in Penal Code section 1210, subdivision (a) does not necessarily mean the personal use of the person possessing the drugs, but may include the personal use of another person so long as the person possessing the drugs does not intend to sell them to the other person. It is unnecessary to address this novel issue of statutory interpretation because the court’s ruling does not depend upon it. The evidence at trial and at the sentencing hearing was that defendant was carrying multiple bindles of heroin and both powder and rock cocaine and $200 mainly in $20 bills. The probation report reveals that defendant had two prior convictions for possession of controlled substances for sale (Health & Saf. Code, § 11351). Particularly in view of the variety and quantity of drugs in defendant’s possession and the amount of money in small denominations he possessed, the trial court was entitled to disbelieve defendant’s testimony and to find that he had not carried his burden of proving that he did not possess all of the drugs for personal use, as distinguished from possession for the purpose of sale. (See, e.g., People v. Silva (2001) 25 Cal.4th 345, 369 [“A rational trier of fact could disbelieve those portions of defendant’s statements that were obviously self-serving”]; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 [“credibility is governed by more than just the words transcribed by a court reporter. A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so”].)
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.