Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR054597S
Jones, P.J.
Charles Lloyd Gay appeals from a judgment entered after a jury convicted him of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). He contends (1) his transportation conviction was not supported by substantial evidence, (2) the court erred when it responded to a question from the jurors, and (3) the court sentenced him incorrectly. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 13, 2005, shortly before 5:00 a.m., Deputy Sheriff Justin Braud was on patrol in Eureka when he noticed someone who appeared to be slumped over in the passenger seat of a car parked near an alley. Braud stopped to investigate. The person identified himself as Paul Bareilles. He said he had been waiting for about an hour for someone who had gone down the alley. As Braud was speaking with Bareilles, appellant appeared from the alley. When appellant saw Deputy Braud, he turned and ran. Braud ran after appellant and ordered him to stop. Appellant refused to comply. Braud called for assistance.
Sergeant Bryan Quenell responded to Braud’s call and joined in the chase. Quenell found appellant hiding in the laundry room of a market. Braud arrived and questioned appellant about why he ran. Appellant denied running. He said he was simply walking back from visiting his girlfriend who was staying nearby. Appellant said he had driven there in a blue and silver Ford truck that was parked in front of the market. Braud searched appellant and found nearly $3,000 in cash. Braud also recovered a set keys for a Ford vehicle.
Braud searched the area in front of the market and found a Ford truck parked nearby. Appellant denied the truck was his. Braud opened the truck using the keys he had obtained from appellant. Inside a locked tool box in the back, Braud found a backpack. Inside the backpack were two bags containing a total of 11.9 grams of methamphetamine, a glass pipe, and a digital scale.
Based on these facts, an information was filed charging appellant with possessing methamphetamine for purposes of sale (Health & Saf. Code, § 11378), and transporting methamphetamine. (Health & Saf. Code, § 11379.) The case was tried to jurors who found appellant guilty on the transportation offense, but who were unable to reach a verdict on the charge of possession for sale. Defense counsel stipulated to a guilty verdict on the lesser included offense of simple possession.
Subsequently, the court sentenced appellant to the upper term of four years on his transportation offense and imposed but stayed a term of three years on the possession offense.
II. DISCUSSION
A. Sufficiency of the Evidence
Appellant contends his conviction of transporting methamphetamine must be reversed because it is not supported by substantial evidence.
Our role when evaluating this type of argument is “a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” (Ibid. quoting People v. Jones (1990) 51 Cal.3d 294, 314.)
Here, appellant contends the evidence was insufficient because there was no evidence that he transported the methamphetamine that was found. We disagree. The methamphetamine in question was found in a backpack that was locked in the tool box in the back of a truck. Appellant had the keys to both the truck and the tool box in his possession. In addition, appellant told Deputy Braud that he had driven to the area in his silver and blue Ford pick-up in order to visit his girlfriend. From these facts, the jurors reasonably could conclude that appellant had driven the truck and the methamphetamine it contained to the place where it was found. We conclude there is ample evidence to support the conclusion that appellant transported the methamphetamine.
B. Response to Question
The court instructed the jurors on the elements of a transportation offense using CALCRIM No. 2300. As is relevant, the court told the jurors that, “A person transports something if he or she carries or moves it from one location to another even if the distance is short.”
After the jurors retired to deliberate, they sent a message to the court. The court and counsel discussed the message as follows:
“THE COURT: We are . . . in session in People versus Charles Gay. He and both counsel are present. The jurors are not present. I’ve received a note from the jury. We will have that marked as Court’s Exhibit Two. It reads, quote, we need clarification on the definition of transportation. Is movement necessary, close quote. What I would suggest that we do is send back a written note – give me a moment to write it. I’ll read it, see if we have agreement or if there’s anything additional. What I’ve written so far is the definition of transportation is contained in jury instruction two three zero zero. I could leave it at that or I could add a sentence to the effect, if you have a more particular question, you should send an additional written note. “Mr. Dikeman, any comments on any of it at all? “Mr. DIKEMAN [Deputy District Attorney]: Either way is fine with me, Your Honor.
“THE COURT: Miss Angus?
“MS. ANGUS [Defense Counsel]: Your Honor, at this point, I would simply refer them to the jury instruction. I’m quite certain that if they have further questions, they’ll contact us by written request. But I would submit that issue to the Court.
“THE COURT: What I’ve now written is as follows: ‘The definition of transportation is contained in jury instruction two three zero zero. Hopefully, that will answer your question. If it does not or if you have a more particular question, please send me another written note. Thank you. Judge Cissna.’
“Mr. Dikeman, any comment?
“MR. DICKEMAN: Fine Your Honor.
“THE COURT: Miss Angus?
“MS. ANGUS: Submitted.”
Appellant now contends his conviction must be reversed because the trial court failed to respond adequately to the juror’s question by providing a clarifying instruction.
We reject this argument for two reasons. First, appellant failed to object on this ground in the court below. Therefore appellant has forfeited the right to raise the issue on appeal. (See People v. Roldan (2005) 35 Cal.4th 646, 729.)
Second, even if we were to ignore the procedural barrier, appellant’s argument is unpersuasive. Penal Code section 1138 states that when the jury “desire[s] to be informed on any point of law arising in the case . . . the information required must be given . . . .” Our Supreme Court has interpreted this language to mean the trial court “has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard [instructions] are often risky. [Citation.] . . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97, original italics.)
The court here followed the correct procedure precisely. The jurors asked a question that was plainly answered by the instructions that had been given. Given this fact, the court, with the approval of both counsel, decided the best way to respond was to direct the jurors to the particular instruction that would answer the question they had posed. However, the court was open to the possibility that the instruction might not answer all the questions the jurors might have. Therefore, the court told the jurors that if the instruction did not answer their question fully, or if they had some more precise question, they should send another written note.
We conclude the court did not abuse its discretion when responding to the jury’s question.
Appellant contends the court’s response was inadequate because CALCRIM No. 2300 is in fact ambiguous. This is so, appellant argues, because the instruction uses the word “carry” when defining the word “transport.” While appellant concedes that one definition of the word “carry” is “to transport from one place to another” appellant notes another definition is “to sustain the weight or burden of” as in to carry an unborn child. Appellant argues that if the jury had utilized the latter definition, it would have been possible to convict him of transporting methamphetamine even if there was no evidence that he had moved the drug.
We reject this argument because appellant is engaging in a “tortuous analysis” that no reasonable juror would undertake. (People v. Warren (1988) 45 Cal.3d 471, 488.) The court here told the jurors that, “A person transports something if he or she carries or moves it from one location to another even if the distance is short.” Read as a whole, the instruction plainly required the jurors to find movement “from one location to another even if the distance is short.” It is not reasonably likely the jurors interpreted the instruction as appellant suggests. (People v. Clair (1992) 2 Cal.4th 629, 663.) The court responded to the jury’s question adequately.
Having reached this conclusion, we need not reach appellant’s further argument that defense counsel was ineffective because she failed to object to the court’s allegedly inadequate response.
C. Sentencing
Appellant’s counsel urged the court to sentence appellant to probation and drug treatment under Proposition 36. The court stated it was not inclined to grant that request, “My tentative decision in the matter is to make a finding, if that is required, that the controlled substance was possessed for sale given the circumstances of the arrest, the money, the uncashed checks. You know – I thought about it. In some respects, I’d like [to] find otherwise. If I did, I wouldn’t be being honest because I have no doubt it was possessed for sale . . . . [¶] . . . I would then find that he is not eligible for treatment under Prop. 36.”
After hearing argument from both counsel, the court reaffirmed its tentative decision as follows: “My finding about personal use remains and I think the Court does have the authority to make that finding . . . .” The court then sentenced appellant to the upper term of four years on his transportation offense.
Appellant now contends the trial court erred when it sentenced him to prison rather than granting him probation under Proposition 36.
Appellant’s argument focuses on the court’s decision to sentence him to prison rather than granting him probation. Appellant does not challenge the court’s decision to impose the upper term.
Proposition 36, the “Substance Abuse and Crime Prevention Act of 2000” added sections 1210 and 1210.1 to the Penal Code. (People v. Glasper (2003) 113 Cal.App.4th 1104, 1112.) As is relevant, Penal Code section 1210.1, subdivision (a) states, “any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.” Penal Code section 1210, subdivision (a) states, “The term ‘nonviolent drug possession offense’ means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance . . . . The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance . . . .”
Under these statutes, the critical factor when determining whether a defendant is eligible for probation is whether the defendant’s offense was for “personal use.” Cases addressing that issue have held that the defendant bears the burden of proving whether his offense was for “personal use” (People v. Barasa (2002) 103 Cal.App.4th 287, 296), and that the trial court must make that determination based on a preponderance of the evidence. (People v. Dove (2004) 124 Cal.App.4th 1, 11.)
Here, the trial court ruled that appellant’s offense was not for “personal use” but for purposes of sale. That finding is amply supported by the record. The backpack in appellant’s truck contained a large amount of methamphetamine and a scale. In addition, appellant had a large amount of money is his possession at the time of his arrest. An expert who testified at trial stated these factors indicated appellant possessed the methamphetamine for purposes of sale. We conclude the court did not err when it ruled appellant was not eligible for probation under Proposition 36.
Appellant contends the court violated Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and its progeny when it sentenced him to prison rather than to probation under Proposition 36. We disagree. As appellant concedes, three published decisions have rejected this precise argument. (See People v. Barasa, supra, 103 Cal.App.4th at pp. 294-295; People v. Glasper, supra, 113 Cal.App.4th at p. 1115; People v. Dove, supra, 124 Cal.App.4th at pp. 8-9.) The thrust of these cases is that the rule set forth in Apprendi only applies when a court imposes a sentence that is above the statutory maximum based on facts that are not found by a jury to be true. By contrast, “Apprendi does not apply here because ‘the issue concerns a sentencing provision which lightens, rather than increases, punishment for crime. Because Penal Code section 1210.1 effects a sentencing reduction, rather than an increase in the “‘prescribed statutory maximum’” sentence, the analysis of a related sentencing provision which also provides for a possible mitigation of punishment, rather than an increase in the prescribed statutory maximum punishment, is applicable.’” (People v. Glasper, supra, 113 Cal.App.4th at p. 1115, original italics, quoting People v. Barasa, supra, 103 Cal.App.4th at p. 294; see also People v. Dove, supra, 124 Cal.App.4th at pp. 8-9.) We believe Barasa, Glasper, and Dove were decided correctly and will follow them here.
Appellant argues we should not follow Barasa, Glasper, and Dove because they fail to recognize that “the probation provisions of Proposition 36 are mandatory in the case of nonviolent drug possession and transportation offenses.” Appellant suggests he was entitled to probation based on the jury’s verdict and that any further factual finding by the court that resulted in his exclusion from probation must be governed by Apprendi. While probation is indeed mandatory for those convicted of a nonviolent drug possession offense, appellant’s conviction did not establish that he had committed such an offense. As we have noted, the critical issue when determining whether a defendant is entitled to probation under Penal Code section 1210, subdivision (a) is whether the defendant committed the offense for “personal use.” The jury’s verdict did not establish that appellant committed his offenses for “personal use” as that term is statutorily defined. The jurors found only that appellant possessed and transported methamphetamine. They were not asked to determine nor did they find that appellant’s possession or transportation were for “personal use.” Thus, contrary to appellant’s argument, he was not entitled to probation based solely on the jury’s verdict.
Appellant also argues that the court “supplanted” the jury’s findings when it ruled appellant possessed the methamphetamine for purposes of sale. According to appellant, that ruling was inconsistent with the jury’s inability to reach a verdict on the possession for sale charge.
The court in Dove faced a similar issue. There, the trial court ruled the defendant did not possess drugs for personal use even though he had been acquitted on a possession for sale charge. On appeal, the defendant argued the jury’s verdict was binding on the trial court. The Dove court disagreed, “The acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale. Precisely because Apprendi . . . [does] not apply, the trial court was free to redetermine the personal use issue based on the preponderance of the evidence. (United States v. Watts (1997) 519 U.S. 148, 157 [‘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’].” (People v. Dove, supra, 124 Cal.App.4th at p. 11.)
We conclude the court did not err when sentencing appellant.
III. DISPOSITION
The judgment is affirmed.
We concur: Needham, J., Stevens, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.