Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01143
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant Lynn Cleghorn of transportation of cocaine base (Health & Safety Code, § 11352, subd. (a)), but could not reach a verdict on charges that he possessed the cocaine base for sale. (Health & Safety Code, § 11351.5.) The court suspended imposition of sentence and placed defendant on probation for five years.
The split was 11 to 1 not guilty on this count.
Defendant appeals this sentence, contending that the distinct jury verdicts mean “the jury necessarily determined” he was not transporting the cocaine base for sale. Accordingly, defendant contends, the trial erred in failing to grant him probation under Proposition 36. Although we do not accept defendant’s argument, because the record in this case does not reflect the court determined the issue of personal use, we will remand the matter for resentencing.
FACTUAL BACKGROUND
On February 4, 2007, Deputy Jack Noble stopped defendant for driving with an expired registration tag and making a right turn without signaling. Defendant was driving the car, his girlfriend was in the passenger seat and two minors were in the back seat. Deputy Noble asked defendant for identification, and defendant informed the deputy that his license was expired and he had some outstanding warrants. Deputy Noble escorted defendant to his patrol car to conduct a records check. As they were walking back, defendant dropped a small rock like substance on the ground and smashed it. The deputy suspected it was rock cocaine. It was later confirmed that it was .08 grams of rock cocaine. Deputy Noble pat searched defendant, but did not find anything on him.
Rock cocaine is slang for cocaine base.
The records check confirmed defendant had a suspended license and three warrants for traffic violations. Deputy Noble then searched defendant’s car where he found a clear plastic baggie “sticking out” from between the center console and the driver’s seat. The baggie contained about 10 to 20 rocks, approximately 12.6 grams, of rock cocaine. A second more thorough search of defendant revealed $406 and a cell phone. There were no other indicia of sales.
Defendant was self-employed as a neighborhood handyman, performing services such as basic home repairs, electrical, plumbing, carpentry and car repairs. He was usually paid in cash for his services. The night before defendant’s arrest, his son went to spend the night with his friend in Elk Grove. When his son was late getting home, defendant learned the boys had been missing since noon. J.H. agreed to let defendant borrow her car to find her son. Defendant found his son, went to pick up his girlfriend’s daughter and headed home. Defendant acknowledged his girlfriend uses rock cocaine, as does he. She uses it as often as possible and he uses it as infrequently as possible, usually a couple of times a day, twice a week. Both defendant and his girlfriend buy one or two at a time. Defendant denied selling drugs, denied having any rock cocaine in his hand when he exited the car, and denied knowing of any rock cocaine in the car.
Deputy Robert White testified as an expert in narcotics investigations who testified that a single dose of rock cocaine is typically .10 of a gram. He stated that users typically do not carry large amounts of rock cocaine on them and that rock cocaine sellers frequently will leave their supply in their car, rather than keeping it on their person for fear of being robbed. Deputy White opined, based on the amount of rock cocaine found, broken into 10 to 20 rocks, $406 in cash in a variety of denominations, a cell phone and no other paraphernalia, that defendant possessed the rock cocaine for the purpose of sales. He believed 12.6 grams would be approximately 120 doses, if broken into .1 gram doses, and concluded the average user would not carry 120 doses.
J.H. confirmed defendant had worked on her car and done some construction jobs for her boyfriend. He had asked to borrow J.H.’s car to look for his missing son, and J.H. agreed to lend it to him. Earlier in the day, J.H.’s cousin and her friend had borrowed the car.
PROCEDURAL HISTORY
Defendant was charged with one count of possessing cocaine base for sale and one count of transporting cocaine base. During trial, defendant requested an instruction be given to the jury requiring it to determine whether he transported the cocaine base for personal use, a finding which would render him eligible for Proposition 36 sentencing.
The trial court denied this request.
After the jury reached its verdict on the transportation charge, and remained deadlocked on the possession for sale charge, the parties discussed the date for sentencing and defendant’s meeting with probation for the sentencing report. Defendant suggested to the court, “Whether or not the Court -- if the Court has not made up its mind at this time whether or not this transportation was for personal use or for not for personal use, if that’s an open question at this time, you should direct the Court -- I’m sorry. You should direct the probation department to determine whether or not --” The court interrupted and responded, “I’m not making a finding, and I’m not making any order to the probation department at this time.” Defense counsel pointed out that, “probation is the mechanism by which we make the determination on the eligibility.” The court reiterated, “I’m not making orders, and I’m not making any findings at this time, period.” The probation report made no mention of Proposition 36. The probation officer recommended defendant be granted probation, based on the fact this was his first felony conviction and recommended he participate in a drug rehabilitation program.
Prior to sentencing, defendant filed a statement in mitigation in which he moved the court to “reconsider any finding of fact that the transportation of the substance was for the purpose of sale, as that directly conflicts with the jury’s finding of not guilty on count[] one, Health and Safety Code section 11351.5 (possession for the purpose of sale.) With such a finding, [defendant] would be a statutorily determined candidate for Proposition 36 probation, . . .”
The statement in mitigation also contained arguments relative to defendant’s personal attributes and other factors in mitigation which are not relevant to the issues on this appeal.
At sentencing, the court indicated it had read and considered the probation officer’s report, as well as the materials submitted by the defendant. Based solely on the fact that this was defendant’s first felony conviction, the court found, “exercising my judicial discretion I’m not going to sentence the defendant to prison. This was never going to be a prison case form the very outset.” The court then proceeded to suspend imposition of sentence, and place defendant on probation for five years, conditioned on serving 120 days in county jail. There was no discussion of Proposition 36 probation in the court’s ruling.
DISCUSSION
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, is codified at Penal Code sections 1210, 1210.1, 3063.1, and division 10.8 (commencing with § 11999.4) of the Health and Safety Code. Section 1210.1, subdivision (a), requires the trial court to grant probation with a drug treatment condition to anyone convicted of a “nonviolent drug possession offense” unless disqualified by the provisions of section 1210.1, subdivision (b). Section 1210, subdivision (a), defines a “‘nonviolent drug possession offense’ “ as “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.” (Italics added.)
Further undesignated statutory references are to the Penal Code.
Defendant contends the trial court abused its discretion by “sentenc[ing] [him] contrary to the jury’s findings. The jury, having determined that insufficient evidence existed to find [defendant] possessed drugs for sale, impliedly decided that the transportation was also for personal use, thereby entitling [defendant] to Proposition 36 treatment.” The People counter that “the jury did not decide the question of whether [defendant] possessed cocaine base for personal use, . . .” This in turn, the People argue, allowed the court to find defendant ineligible for Proposition 36 probation.
Defendant is incorrect in his argument that the jury necessarily determined the transportation was for personal use. The jury’s inability to reach a verdict on the possession for sale count was not necessarily or impliedly a finding that the transportation was for personal use rather than for sale.
Possession is not an element of transportation. “Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may ‘transport’ marijuana or other drugs even though they are in the exclusive possession of another. [Citations.] For example, were defendant shown to have aided and abetted his passengers in carrying, conveying or concealing drugs in their possession, his conduct would have sustained a conviction of transportation. [Citation.] Therefore, it is apparent that defendant's acquittal of the possession charge did not necessarily preclude conviction of transportation.” (People v. Rogers (1971) 5 Cal.3d 129, 134.)
“When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors. . . . [Citation.] Placement of eligible defendants in Proposition 36 programs is not a discretionary sentencing choice made by the trial judge and is not subject to the waiver doctrine. [Citation.]” (People v. Esparza (2003) 107 Cal.App.4th 691, 699.) “However, when a defendant is ineligible, a prison sentence is equally mandatory. Sometimes, as in this case, a jury's verdict will not necessarily determine whether the defendant is eligible or ineligible. This poses some difficulty in discerning which is the statutory maximum.” (People v. Dove, supra, 124 Cal.App.4th at p. 10.)
Since there is no such crime as transportation of a controlled substance for sale, when a transportation conviction is involved, it falls to the trial court to determine whether the defendant was transporting the controlled substance for personal or commercial use. (People v. Dove, supra, 124 Cal.App.4th at p. 11.) Defendant “has the burden of proving that the possession or transportation was for personal use. [Citation.] Also, . . . the trial court's finding that the possession or transportation was not for personal use need not be stated on the record. If the trial court imposes a prison sentence, we will imply the necessary finding.” (People v. Dove, supra, at p. 10.) Generally, “where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
Thus, we agree with the People, as far as their argument goes. That is, that the jury did not determine the issue of personal use versus sales and since the jury did not make this determination, the personal use issue was left to the court to determine. (People v. Dove, supra, 124 Cal.App.4th at p. 11; see also United States v. Watts (1997) 519 U.S. 148, 157 [136 L.Ed.2d 554] [“a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence”].) However, on the record before us, it does not appear the court exercised its discretion to determine whether the transportation was for personal use or for sale.
Although the court was not required to make its finding of that the transportation was not for personal use on the record, the record must support the conclusion that the court made such a finding. Here, it does not.
Prior to the matter being referred to probation, defendant requested the court rule on the issue of whether the transportation was for personal use or not. The court expressly, and repeatedly, stated it was “not making orders, and I’m not making any findings at this time, period.”
In his statement in mitigation, despite the court’s insistence it was not making any findings on the personal use issue, defendant asked the court to “reconsider” any findings on the issue of personal use. The court did not mention any such findings or give any indication such findings had been made. On this record, where the court’s only statement on the record is that it was not making any orders or findings on the issue of personal use, we cannot presume such findings were made.
Accordingly, we will remand the matter to allow the trial court to consider the evidence, make appropriate findings and resentence defendant.
DISPOSITION
Defendant’s sentence is vacated and the matter is remanded for resentencing in accordance with the principles set forth in this opinion. In all other respects, the judgment is affirmed.
I concur: NICHOLSON, Acting P. J.
I concur and write separately to express my concern on the trial judge’s refusal to follow clear requirements of law.
ROBIE, J.