Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. FVI025513, John M. Tomberlin, Judge. Affirmed.
Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
McKINSTER, Acting P. J.
INTRODUCTION
A jury found defendant guilty of transporting a controlled substance. (Health & Saf. Code, § 11379, subd. (a).) Defendant admitted suffering a prior conviction that resulted in a prison term. (Pen. Code, § 667.5, subd. (b).) The court sentenced defendant to state prison for a term of four years. Defendant contends the court violated his Sixth Amendment rights to a jury trial and to proof beyond a reasonable doubt by finding a fact that caused him to be ineligible for Proposition 36 probation. We affirm the judgment.
The jury was deadlocked as to count 1, possessing a controlled substance for sale (Health & Saf. Code, § 11378), and the court dismissed the count.
Defendant admitted two prior convictions that resulted in a prison term (Pen. Code, § 667.5, subd. (b)); however, the court struck one of the prior convictions.
FACTS
On October 9, 2006, San Bernardino County Sheriff’s Deputy Alvarado stopped defendant while he was driving in Adelanto. Defendant stopped his vehicle in a residential driveway. Defendant exited his vehicle and moved to the front of the vehicle. Defendant then returned to the driver’s seat of his vehicle. Deputy Alvarado approached defendant and placed him in the back of the patrol car. Deputy Alvarado then investigated the front of defendant’s vehicle. The deputy found a plastic bag “right on top of the bumper,” near where defendant had been standing. The plastic bag contained 6.92 grams or approximately one-quarter ounce of ice methamphetamine, which is a high-quality methamphetamine. The amount of methamphetamine found in defendant’s possession would last for several weeks, if consumed by a long-term methamphetamine addict. Deputy Alvarado found $320, in $20 bills, in defendant’s possession, but did not find plastic baggies, a cell phone, pager, scales, or pay-owe sheets. San Bernardino County Sherriff’s Detective Ohaneessian opined that the methamphetamine in defendant’s possession was for sale, due to the money defendant had in his possession, the quantity of drugs in defendant’s possession, the failure to find any paraphernalia associated with drug use, such as a pipe, and defendant’s act of distancing himself from the drugs when stopped by the deputy, which is not typical of drug users.
Defendant’s trial counsel requested that defendant be sentenced to Proposition 36 probation. After defendant’s request, the court made the following comments: “I am willing to have you tell me what you want, and I will look at the law and how it applies, but I don’t believe that the amount of methamphetamine that he had was for personal use. [¶] And I heard the same trial you did. I heard the testimony of the witnesses, and if his obtaining Prop 36 is going to be based on my coming to the conclusion as a factual argument that he possessed this stuff for personal use, I think it’s going to be a very difficult argument on your part . . . because I heard the trial already, but I don’t know the answer. You said you want to brief it. I am happy to look at the briefs. I am happy to look at everything else.”
The trial court considered the parties’ briefs, denied defendant’s request, and made the following remarks: “Yeah, [defendant’s trial counsel], let me start off by saying you may very well be right [that the United States Supreme Court’s decision in Cunningham might conflict with the holding of Dove . I believe that I am bound by the logic of the Dove case under the circumstances, and I think that there is reason to not make a finding that this matter—that in this matter [defendant] possessed the contraband for personal use, and I am going to decline to make that finding just as judge—I should say just as the judge did in the Riverside case of People versus Dove. [¶] And it’s for the appellate court. They will have a chance. Judge Richley [sic] wrote this opinion. She will have a chance to revisit her own opinion under the circumstances today and in light of the precedent that you cited and precedent may come out between now and the time this case is before her, and so I am going to deny Prop 36 . . . .”
Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
People v. Dove (2004) 124 Cal.App.4th 1 (Dove).
DISCUSSION
Defendant contends the court violated his Sixth Amendment rights to a jury trial and to proof beyond a reasonable doubt by finding that he did not transport the methamphetamine for personal use—a fact that caused him to be ineligible for Proposition 36 probation. Defendant argues that this court’s decision in Dove, which the trial court relied upon, is inconsistent with the holding in the recent case of Cunningham. We disagree with defendant’s contention.
We note that the trial court did not expressly find that defendant did not possess the drugs for personal use, but implicitly found that fact because the court sentenced defendant to state prison rather than granting him Proposition 36 probation. In Dove, we noted that the trial court chose not to explicitly find that the drugs the defendant transported were for personal use. (Dove, supra, 124 Cal.App.4th at pp. 7, 10-11.) We held that because the court’s finding that the drugs were not for personal use was not required to be stated on the record, then we could imply the necessary finding. (Id. at pp. 10-11.) We then concluded that “a prison sentence is not subject to reversal merely because the trial court failed to make an express finding of personal use.” (Ibid.)
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, is codified in Penal Code section 1210.1 and requires the trial court to grant probation with a drug treatment condition to any defendant convicted of a “nonviolent drug possession offense.” (Pen. Code, § 1210.1, subd. (a).) A nonviolent drug possession offense is defined in part as transporting methamphetamine for personal use, but “does not include the possession for sale, production, or manufacturing of any controlled substance . . . .” (Pen. Code, § 1210, subd. (a).)
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proven beyond a reasonable doubt. (Id. at p. 489.) Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional factual findings, there is a right to a jury trial and to proof beyond a reasonable doubt on the additional facts.
In Dove, this court determined that a trial court’s finding that the defendant did not transport drugs for personal use did not implicate the defendant’s Sixth Amendment rights as contemplated in Apprendi because Penal Code section 1210.1 creates a sentencing reduction rather than an increase in the prescribed statutory maximum sentence. (Dove, supra, 124 Cal.App.4th at p. 9.) We reached this conclusion, in part, by relying on our Supreme Court’s determination in In re Varnell (2003) 30 Cal.4th 1132, 1142, that “[Penal Code] section 1210.1 reduces the potential punishment” that a defendant may expect based upon his or her conviction(s). (Dove, at pp. 8-9.)
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law violates a defendant’s rights to a jury trial and to proof beyond a reasonable doubt to the extent the law allows a judge to impose an upper term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 127 S.Ct. at pp. 860, 871.)
We conclude that the analysis of defendant’s contention has not changed due to the court’s decision in Cunningham, because Cunningham did not address sentence reduction schemes. Furthermore, we are bound to follow our Supreme Court’s determination in In re Varnell, supra,30 Cal.4th at page 1142, that Penal Code section 1210.1 reduces a defendant’s expected sentence. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, the trial court was within its authority in finding that defendant’s offense did not qualify as a nonviolent drug offense, i.e., that defendant did not possess the drugs for personal use. The trial court did not violate defendant’s Sixth Amendment rights.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., GAUT, J.