Opinion
B226168
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO TOPETE, Defendant and Appellant.
J. Scott Cramer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Ana R. Duarte, Deputies Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA085143)
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Modified and affirmed with directions.
J. Scott Cramer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Ana R. Duarte, Deputies Attorney General, for Plaintiff and Respondent.
SUMMARY
Humberto Topete appeals from the judgment entered following his conviction by jury of transportation of a controlled substance. He contends the trial court erred when it refused to permit the jury to determine whether the methamphetamine was transported for personal use. We find no error and affirm. The Attorney General contends the judgment must be modified and the abstract of judgment corrected. We agree.
PROCEDURAL BACKGROUND
A one-count information charged Topete with one felony count of transportation of a controlled substance (methamphetamine), in violation of Health and Safety Code section 11379, subdivision (a). The information also alleged that Topete had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).Topete pleaded not guilty and denied the allegations. A jury found Topete guilty of transportation of a controlled substance.
Undesignated statutory references are to the Penal Code.
At the sentencing hearing the trial court declined to find the methamphetamine had been transported for personal use, and denied Topete's request to be sentenced under Proposition 36. The trial court denied probation, and sentenced Topete to three years in state prison. He was also ordered to pay (1) a $200 parole restitution fine (§ 1202.4, subd. (b)); (2) a $200 parole revocation fine (§ 1202.45, stayed pending successful completion of parole); (3) a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)); and (4) a $30 court security fee (§ 1465.8, subd. (a)(1)). Topete was awarded 232 days of presentence custody credits.
FACTUAL BACKGROUND
Prosecution case
During a traffic stop in Long Beach, Police Officer Decarvalho noticed that Topete, who had been riding an unlicensed bicycle, had a "small quarter-size bulge" in one sock. When asked about it, Topete said it was "just weed" and removed a small plastic bag from his sock. Officer Decarvalho took the bag of marijuana, placed Topete under arrest for possession, and searched him. During the search, Officer Decarvalho found a small plastic bag "containing a crystalline substance that [he] believed to be methamphetamine" in Topete's sock.
A violation of Long Beach Municipal Code section 10.50.020.
On the way to the station, Topete told Officer Decarvalho the methamphetamine was not for him. He said he had agreed to buy it for his friend "Carlos," who had given him $20. Topete bought the methamphetamine from someone at a park and had been taking it to Carlos, who had told Topete he could keep $10. Topete had $85 in his wallet, but no $10 bill. He said he used the money to buy some deodorant; deodorant was found in Topete's bag.
A criminalist analyzed the material recovered from the baggies. One contained a crystalline substance weighing .38 grams containing methamphetamine. The other held marijuana.
Officer Decarvalho opined at trial that based on his training and experience, .02 grams was a usable quantity of methamphetamine. The .38 grams found in Topete's possession was "absolutely" a usable quantity. If a typical dose was .1 grams, Topete had about four doses in his possession at the time of his arrest. Officer Decarvalho testified that people commonly used middlemen to purchase narcotics.
Defense evidence
Topete testified that on the evening of his arrest he had been "doing methamphetamine" for over 72 hours. He was "super high" and felt like he "was coming out of [his] skin." To ease that feeling and relax from the effects of the drug, he took a bike ride and bought some marijuana to smoke later. Topete thought he had used all of the methamphetamine he had and did not remember putting any in his sock.
After his arrest Officer Decarvalho asked Topete questions on the way to the station. He asked Topete if he knew about "any guns" or "drug houses" and told him that if he took "the transportation that [he] would get a lesser . . . charge." When asked by Officer Decarvalho where he obtained the methamphetamine, Topete "felt pressure to make some kind of statement," so he "made up the story" about someone named "Carlos." At the time, Topete was nervous, "in a cold sweat" and his mind was "fogged up . . . [and] distorted" from prolonged use of methamphetamine.
Topete admitted having been convicted of petty theft with a prior in 2008, grand theft in 2003, and also admitted that he had had a drug problem since 2000.
DISCUSSION
1. Denial of Topete's request to have the jury determine whether the transportation of a controlled substance was for "personal use."
Topete maintains the trial court erroneously denied his request to have the jury determine whether the narcotics that formed the basis of the transportation charge were transported for personal use, a finding which would have rendered him eligible for probation and drug treatment under Proposition 36.
a. Relevant proceedings
Before trial, Topete's attorney requested the court rule that the prosecution had the obligation "to disprove personal use beyond a reasonable doubt" and that it was up to the jury to decide whether transportation of the narcotics was for personal use. Topete's counsel relied on Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 235] (Apprendi),and Blakely v. Washington (2004) 542 U.S. 296 403 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely)to buttress his assertion that "this is a fact that increases the available punishment." The court disagreed. It observed that "there is no crime of transportation for personal use," and it could not "instruct the jury on a crime that doesn't exist." The court observed that the "only crime . . . is transportation . . . of methamphetamine," and "there is case law that says if it's for personal use, then Prop 36 may apply," but also noted, like other sentencing considerations, "an eligibility determination for Prop 36 . . . is traditionally a court decision" and "if there is a conviction," then "the determination of whether the transportation was for personal use is a decision to be made by the court so far as eligibility under Prop 36."
At the sentencing hearing, Topete's counsel requested probation under Proposition 36, reminding the court he had earlier asked that the jury "make a finding with respect to whether this was transportation for personal use or transportation for sales." The court stated it would make the finding "under a clear and convincing standard based on the evidence presented at trial." It stated: "I do find under clear and convincing [sic] and, if required, by proof beyond a reasonable doubt that the transportation was to furnish it to another individual. I do credit [Topete's] statement to the police officers and not his trial testimony, which, in my mind, was not believable. So this is transportation for sale, essentially."
b. Analysis
The Substance Abuse and Crime Prevention Act of 2000, is commonly known as Proposition 36. (§§ 1210, 1210.1, 3063.1.) "Proposition 36 outlines an alternative sentencing scheme for those convicted of certain narcotic offenses." (In re Varnell (2003) 30 Cal.4th 1132, 1136 (Varnell).)It mandates probation and diversion to a drug treatment program in lieu of incarceration for drug offenders whose illegal conduct is nonviolent and is confined to personal use, such as those convicted of being under the influence and possession or transportation of a controlled substance for personal use. (People v. Guzman (2005) 35 Cal.4th 577, 585; see also § 1210.1, subd. (a).) Proposition 36 excludes the transportation for sale of any controlled substance. (People v. Dove (2004) 124 Cal.App.4th 1, 6 (Dove); § 1210, subd. (a).)
Topete maintains the jury should have been permitted to determine not just that he transported a controlled substance, but also the purpose of that transportation. He argues the court improperly imposed its own judgment by using facts he did not admit and which the jury did not find true to find the drugs were transported for sale, after the jury found no more than mere transportation. Doing so, Topete contends, was a violation of his rights under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466. We reject this assertion just as similar assertions have been consistently rejected by other courts. The reason is straightforward: possession of drugs for personal use under Proposition 36 does not set a statutory maximum and cannot increase or enhance a defendant's punishment. Rather, it is a sentence reducing scheme. (Varnell, supra, 30 Cal.4th at p. 1142; Dove, supra, 124 Cal.App.4th at pp. 7-11; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115; People v. Barasa (2002) 103 Cal.App.4th 287, 294.) Proposition 36 reduces rather than increases criminal penalties. Accordingly, due process does not require the factual issue to be submitted to a jury and proved beyond a reasonable doubt.
To establish eligibility under Proposition 36, a defendant bears the burden of proving the drugs at issue were possessed or transported for personal use. (Barasa, supra, 103 Cal.App.4th at p. 296.) This determination is made by the trial court, not the jury. (Varnell, supra, 30 Cal.4th at pp. 1141-1144.) Although the court here applied a heightened standard, the issue of personal use typically is evaluated by a preponderance of the evidence standard. (Dove, supra, 124 Cal.App.4th at p. 11, relying on, among other cases, U.S. v. Watts (1997) 519 U.S. 148, 157 [117 S.Ct. 633, 136 L.Ed.2d 554].) Even a jury's acquittal of a defendant on a charge of possession for sale does not preclude a sentencing court from finding drugs were possessed for a purpose other than personal use. (See Glasper, supra, 113 Cal.App.4th at pp. 1112-1114.) The determination of a defendant's eligibility for a diversionary program is traditionally within a trial court's discretion. There is no indication the electorate intended otherwise in enacting Proposition 36. (Id. at p. 1116.) The trial court did not err by reserving for itself the determination of the issue of personal use. (Watts, at p. 157; Dove, supra, 124 Cal.App.4th at p. 11; Glasper, supra, 113 Cal.App.4th at p. 1116.)
Relying on People v. Harris (2009) 171 Cal.App.4th 1488, Topete argues the trial court erroneously made the personal use determination because the "jury's guilty verdict could have been for transportation for personal use . . . ." His reliance on Harris is misplaced. In Harris, the defendant was convicted of transportation of cocaine base. The jury made a specific finding that "'transportation of the controlled substance . . . was for personal use within the meaning of . . . section 1210, [subdivision] (a).'" (Id. at p. 1494.) It was that specific factual finding that led the Harris court to conclude the trial court was required to grant Harris probation and treatment under Proposition 36 absent any eligibility exceptions. (Id. at pp. 1496-1497.) No equivalent finding, express or implied, was made here, nor was one required.
The trial court acted within its discretion to find the transportation was not for personal use and Topete was not eligible for Proposition 36 probation and drug treatment. (Dove, supra, 124 Cal.App.4th at p. 4.) The record contains sufficient evidence that Topete transported the methamphetamine for a purpose other than personal use. Specifically, Topete told Officer Decarvalho he purchased the narcotics from a third party on behalf of a friend in exchange for a fee. The trial court credited this statement and gave no credence to Topete's testimony at trial. A trial judge may "consider the trial testimony in determining a defendant's eligibility for Proposition 36." (Glasper, supra, 113 Cal.App.4th at p. 1113.) In Glasper, a jury found the defendants guilty only of transportation of narcotics; however, the trial court found that the transportation was not for personal use, and refused to apply Proposition 36. (Id. pp. 1110-1113.) The appellate court affirmed, holding that "the trial court correctly determined it had 'the inherent authority' to consider the trial testimony in determining a defendant's eligibility for Proposition 36." (Id. at p. 1113.) Here, as in Glasper, the trial court simply exercised its "inherent authority" to make its sentencing decision in consideration of all the evidence and testimony presented at trial, regardless of how it may have been perceived by the jury. Using a heightened evidentiary standard, the trial court properly weighed the evidence and decided the drugs were not for personal use. No error occurred.
2. Amendment of the abstract of judgment
An unauthorized sentence may be corrected on appeal despite a failure to raise the issue below. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)
The record reflects that the court imposed a $30 court security fee under section 1465.8, subdivision (a)(1). But, as the Attorney General points out, that fee is not reflected on the abstract of judgment. The matter must be remanded with instructions to the trial court to amend the abstract of judgment to reflect the fee imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; see also People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)
The Attorney General also points out that the trial court failed to impose a $30 criminal conviction assessment pursuant to Government Code section 70373, which must be imposed for each offense for which a defendant is convicted. (People v. Cortez (2010) 189 Cal.App.4th 1436, 1443.)
Finally, the court imposed a $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a). But the court failed to impose penalty assessments. "[T]he criminal laboratory analysis fee . . . is subject to penalty assessments under section 1464 and Government Code section 76000." (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522; People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154.) Thus, the judgment must be amended to impose penalty assessments of $50 pursuant to section 1464 and $35 under Government Code section 76000. The abstract of judgment must be amended to reflect the foregoing corrections. (Martinez, at p. 1523.)
DISPOSITION
The judgment is modified by imposing a $30 criminal conviction assessment pursuant to Government Code section 70373, a $50 penalty assessment pursuant to Penal Code section 1464, and a $35 penalty assessment pursuant to Government Code section 76000. The abstract of judgment is to be corrected to reflect the $30 court security fee imposed under Penal Code section 1465.8, subdivision (a)(1). The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and shall forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J.
CHANEY, J.