Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR76602
ROBIE, Acting P. J.
Following a jury trial, defendant, Larry Lee Dere, was found not guilty of sale of methamphetamine and possession of methamphetamine for sale and guilty of transportation and simple possession of methamphetamine. He requested probation under Proposition 36. After finding that defendant did not possess the methamphetamine for “personal use, ” and was thus ineligible for Proposition 36 probation, the court denied defendant’s request and sentenced him to state prison. Defendant appeals the denial of his request. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
One early morning in February 2009, Sergeant Dave Kain conducted a traffic stop of defendant. Defendant was sweating, making rapid movements, and appeared very nervous. During the course of the stop, and a search incident to the stop, officers saw a baggie of methamphetamine on the ground next to defendant and found a second baggie of methamphetamine in defendant’s pocket. A search of defendant’s truck also revealed a digital scale. The baggies contained.67 and 1.61 grams of methamphetamine, representing approximately between 6 and 12 hits and 16 to 32 hits, respectively. Based on the manner in which the methamphetamine was packaged, the presence of the digital scale, and defendant’s prior interactions with narcotics task force agents, Kain testified that in his expert opinion, the methamphetamine was possessed for sale.
Following a jury trial, defendant was acquitted of sale of methamphetamine and possession of methamphetamine for sale. He was found guilty of both transportation and simple possession of methamphetamine. In bifurcated proceedings, defendant admitted enhancement allegations that he had three prior drug-related convictions and served two prior prison terms. Defendant requested probation under Proposition 36. Relying on People v. Dove (2004) 124 Cal.App.4th 1 (Dove), the court reweighed the evidence and found by a preponderance of the evidence that the methamphetamine was possessed for sale. Accordingly, the court denied the request for probation under Proposition 36 and sentenced defendant to an aggregate term of 10 years in prison.
DISCUSSION
I
Denial Of Probation
Defendant contends the trial court’s reliance on Dove to deny him probation under Proposition 36 was misplaced, as recent United States Supreme Court authority has invalidated Dove. We disagree.
Under Proposition 36, “any person convicted of a nonviolent drug possession offense shall receive probation.” (Pen. Code, § 1210.1, subd. (a), italics added.) The term “nonviolent drug possession offense” means “the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance....” (§ 1210, subd. (a).) The term “does not include the possession for sale, ... of any controlled substance....” (Ibid.) If the defendant is eligible, probation is mandatory. However, if the defendant is ineligible, a prison sentence is mandatory. (People v. Esparza (2003) 107 Cal.App.4th 691, 699; Dove, supra, 124 Cal.App.4th at p. 10.) To resolve the issue of Proposition 36 eligibility, the trial court determines whether defendant’s possession was for “personal use” by a preponderance of evidence standard. Defendant bears the burden of proof on this issue. (Dove, at pp. 10-11; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115-1116.)
Further undesignated statutory references are to the Penal Code.
Defendant relies on United States v. O’Brien (2010) 560 U.S. ___ [176 L.Ed.2d 979], the latest in a line of United States Supreme Court cases explicating the meaning of the decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], to argue that the determination of whether the defendant has been convicted of a “nonviolent drug possession offense” under Proposition 36 is not a sentencing factor to be determined by a judge, but rather an element of the underlying offense to be determined by the jury. Defendant’s reliance on O’Brien is misplaced.
Relying on Apprendi, the court in O’Brien reiterated, the “[e]lements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt. [Citations.] Sentencing factors, on the other hand, can be proved to a judge at sentencing by a preponderance of the evidence. [Citation.] Though one exception has been established, [citation] ‘“[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”’ [Citation.] In other words, while sentencing factors may guide or confine a judge’s discretion in sentencing an offender ‘within the range prescribed by statute, ’ [citation] judge-found sentencing factors cannot increase the maximum sentence a defendant might otherwise receive based purely on the facts found by the jury.” (United States v. O'Brien, supra, 560 U.S. at p. ___ [176 L.Ed.2d at pp. 986-987].) The O’Brien court also reaffirmed, that subject to this constitutional limitation, it is Congress’s role to define whether a fact is an element of an offense or a sentencing factor. In the absence of an explicit congressional determination, the court determines congressional intent by examining factors such as: “(1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history.” (O'Brien, at p. ___ [176 L.Ed.2d at p. 987].)
Defendant relies on the factors delineated in O’Brien to argue that the fact to be determined here, whether defendant was convicted of a nonviolent drug possession offense, was an element, not a sentencing factor. As such, he continues, it was a fact to be determined by the jury beyond a reasonable doubt and not by the judge under a preponderance-of-the-evidence standard. Finally, he argues the jury in fact made the “key finding” when it found he “did not possess the drugs for sale.”
The problem with defendant’s argument is that it ignores the predicate premise which must exist before the Apprendi line of cases and reasoning applies. That is, the fact to be determined must increase the penalty for a crime beyond the statutory maximum. It is well-established that Proposition 36 does not set the statutory maximum and cannot increase or enhance defendant’s sentence. Rather, it is a sentence reducing scheme. (In re Varnell (2003) 30 Cal.4th 1132, 1142; Dove, supra, 124 Cal.App.4th at p. 11; People v. Glasper, supra, 113 Cal.App.4th at p. 1115; People v.Barasa (2002) 103 Cal.App.4th 287, 294.) Thus, the fact to be determined does not increase the penalty for an eligible defendant, it decreases it. As such, we continue to find the reasoning in Dove persuasive.
Further, the jury’s verdict finding defendant not guilty of possession for sale is not equivalent to a finding by the jury that he possessed those drugs “for personal use” within the meaning of Proposition 36. Rather, “[t]he acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale.” (Dove, supra, 124 Cal.App.4th at p. 11.) Because the jury’s verdict did not resolve the ultimate issue of whether the possession and transportation was for personal use, defendant’s acquittal by a jury on the charge of possession for sale did not bind the trial court in its consideration of whether the defendant was eligible for Proposition 36 probation. (Dove, supra, 124 Cal.App.4th at p. 11.) Moreover, in this case, defendant was not only convicted of simple possession, but also of transportation. 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. (Ibid.)
Since Apprendi and its progeny do not apply, the trial court was free to make the determination of the “personal use” issue based on a preponderance of the evidence standard. And, in resolving that issue, the court was entitled to consider the conduct and evidence underlying the charge on which defendant was acquitted. (Dove, supra, 124 Cal.App.4th at p. 11 , relying on, among other cases, U.S. v. Watts (1997) 519 U.S. 148, 157 [136 L.Ed.2d 554, 565] [“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”].) Here, the trial court’s finding that defendant possessed and transported the methamphetamine for sale for purposes of assessing defendant’s eligibility for Proposition 36 probation did not disturb the jury’s verdict on the possession for sale offense or violate defendant’s constitutional right to a jury trial.
II
Conduct Credits
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Sen. Bill No. 76) (see Stats. 2010, ch. 426), which amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (Sen. Bill No. 76, § 1; § 2933, subd. (e)(1), (2), (3).) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Sen. Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50) when the person served an odd number of days in presentence custody, and it eliminates the directive in section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239 [applying the rule of Estrada to an amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 2933, subd. (e)(3).)
Senate Bill No. 76 also amends section 4019 to reduce the number of presentence conduct credits earned by qualifying prisoners. With the enactment of Senate Bill No. 76, the calculation of such credits is now based on the rate that existed prior to Senate Bill No. 3X 18, which increased the rate. (Sen. Bill No. 76, § 2; § 4019, subds. (b), (c), (f).) However, this amendment applies prospectively, i.e., only to sentences imposed on or after September 28, 2010. (§ 4019, subd. (g).)
Defendant was in custody for 53 days prior to sentencing. Therefore, pursuant to the amendments to sections 4019 and 2933, he is entitled to 53 days of conduct credit, for a total of 106 days’ presentence credit.
DISPOSITION
The judgment is modified to provide 53 conduct days for a total of 106 days’ presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: BUTZ, J., DUARTE, J.