Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. PA057564, Sanjay T. Kumar, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
John Sanford Golay appeals from the judgment entered following his convictions by jury on two counts of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); counts 3 & 4), two counts of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); counts 5 & 7), and count 6 – possessing an opium pipe (Health & Saf. Code, § 11364, subd. (a)). The court sentenced appellant to prison for two years. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on June 11, 2006, 16-year-old Dawn H. and her sister, Amber H., lived in a Northridge condominium. About 10:00 a.m., the two were at home when appellant contacted Dawn H. via the Internet. One of Dawn H.’s Internet screen names was “Ubugme420alot.” Appellant said he was spun out, which Dawn H. understood to mean that he was under the influence of methamphetamine. Dawn H. indicated she too wanted to be under the influence, and she told him that he could meet her at her residence. Appellant gave his cell phone number to Dawn H. and they talked on the phone while Dawn H. waited for appellant to arrive. Appellant drove to Dawn H.’s condominium.
About 20 minutes after Dawn H. told appellant that he could meet her at her residence, appellant arrived, said he was looking for someone to smoke with, and Dawn H. invited him to her patio. Appellant and Dawn H. smoked methamphetamine in the patio and Amber H. smoked marijuana. While smoking, appellant told Dawn H. that he was 26 or 29 years old.
When Dawn H.’s roommate came home, Dawn H., appellant, and Amber H. jumped the patio fence and drove to a remote parking lot to finish smoking the methamphetamine. After the three arrived at the parking lot, appellant and Dawn H. smoked methamphetamine. Appellant offered the drugs to Dawn H. The prosecutor asked Dawn H. why she was saying appellant had drugs and offered them to her. Dawn H. replied, “[b]ecause he was packing the pipe. He lit the pipe for me. He gave the pipe to me. He put the pipe practically in my mouth, and he lit the pipe.” Appellant gave Dawn H. inhalants to assist her to become under the influence. After appellant and Dawn H. finished smoking, appellant drove the sisters home. Dawn H.’s mother later told Los Angeles Police Detective Debbie Romo that someone, later identified as appellant, had contacted Dawn H.
On June 22, 2006, Romo, pretending to be Dawn H., contacted appellant on the Internet. Romo and appellant discussed “getting high... on methamphetamine.” On June 26, 2006, Romo, pretending to be Dawn H., again contacted appellant on the Internet. Appellant asked Romo if she wanted to smoke, Romo answered yes, and appellant asked where they could smoke. Romo suggested going to a local park. Appellant indicated he had vodka and methamphetamine. About 12:00 p.m., appellant drove a car to the park and was arrested. Appellant denied he was the person whose Internet screen name was associated with appellant, and appellant claimed he was at the park to use the restroom. Police found in the car, inter alia, a bag containing baggies of methamphetamine, two glass pipes, a bottle of vodka, and a condom. Appellant later told Romo that appellant was at the park to meet a person, appellant had met the person once before and they had smoked, and appellant was looking to relax. On June 26, 2006, appellant was 39 years old.
The evidence, the sufficiency of which is undisputed, established that on October 13, 2006, appellant possessed methamphetamine (count 5) and an opium pipe (count 6), and that, on October 24, 2006, he possessed methamphetamine (count 7).
2. Defense Evidence.
In defense, appellant testified as follows. During the late morning hours of June 11, 2006, appellant, a drug addict, received a message from someone later identified as Dawn H. Appellant was in North Hills and had just finished buying methamphetamine. Dawn H. asked how appellant was and he said he was spun and agitated. Dawn H. said she was stoned.
Appellant later went to Dawn H.’s Northridge condominium to meet her. Dawn H. introduced appellant to Dawn H.’s sister, who was smoking marijuana in the patio. Appellant smoked methamphetamine for about 15 minutes but did not offer drugs to Dawn H. or her sister. Appellant later put his pipe and a bag “with the stuff in it” on a coffee table. Appellant was on the phone with his fiancée when Dawn H. grabbed appellant’s pipe from the coffee table and began “loading it and smoking it.”
A man later entered the residence. Appellant picked up his belongings and climbed over a wall. Dawn H. jumped over the wall and told appellant to wait. Appellant invited both girls to go with him to buy cigarettes, and they accompanied him. Appellant drove the girls to a market where he bought cigarettes. When he returned to his car, Dawn H. and her sister were smoking marijuana. Appellant later drove them back to the condominium, leaving them about 12:45 p.m.
On the night of June 25, 2006, appellant received a message from someone with a screen name of “Ubugme420alot,” but appellant believed the screen name belonged to a friend and not to Dawn H. Appellant responded to the message and, about 12:30 p.m., went to the Northridge Recreation Center and brought drugs with him.
CONTENTION
Appellant claims the trial court erred by finding appellant ineligible for Proposition 36 probation.
DISCUSSION
Appellant Was Ineligible for Proposition 36 Probation.
1. Pertinent Facts.
The third amended information alleged as to counts 1 and 3, that on or about June 11, 2006, appellant committed the offenses of an adult using a minor (Health & Saf. Code, § 11380, subd. (a)) and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), respectively. The information also alleged as to counts 2 and 4, that on or about June 26, 2006, appellant committed the offenses of an adult using a minor, and transporting methamphetamine, respectively. The information alleged as to counts 5 and 6, that on or about October 13, 2006, appellant possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possessed an opium pipe (Health & Saf. Code, § 11364, subd. (a)), respectively, and, as to count 7, that on or about October 24, 2006, appellant possessed methamphetamine.
On December 3, 2007, the jury deadlocked (10 for guilt, 2 for acquittal) on count 1, and the court declared a mistrial as to that count. As to count 2, the jury acquitted appellant of the offense of “attempting to furnish methamphetamine to a minor” (capitalization omitted) in violation of Health and Safety Code section 11380, subdivision (a). The jury otherwise convicted appellant as previously indicated as to counts 3 through 7. On April 17, 2008, the court dismissed count 1 on the People’s motion pursuant to Penal Code section 1385.
On June 9, 2008, appellant filed a supplemental sentencing brief in which he stated, inter alia, “[t]here are no cases standing for the prospect that a defendant who ‘shares’ narcotics but never sells should be disqualified from drug treatment under Proposition 36.” (Emphasis omitted.) On June 9, 2008, during the sentencing hearing, appellant argued he was a good candidate for Proposition 36 probation, but “[u]nfortunately, there really is no appellate case that talks about this scenario of sharing narcotics, as opposed to selling narcotics.”
The court indicated the first issue was whether appellant was eligible for Proposition 36 probation. The court added, “[i]n order to be eligible, I need to find by a preponderance of the evidence that the transportation of methamphetamine on June 11, 2006, was for personal use.” The court later concluded, “there is clearly a minimum amount of preponderance of evidence suggesting the transportation was for something other than personal use.”
The court noted it had to consider “whether the evidence demonstrated that the defendant possessed the methamphetamine for his own private use on June 11th, 2006.” The court commented the evidence refuted that conclusion and, after discussing the evidence, the court stated, “[b]ased on all of this, I do not believe it is appropriate for me to make a finding that the June 11th transportation of cocaine [sic] was for a personal purpose. The facts strongly demonstrate that the transportation was for the purpose of sharing the narcotics with Dawn.”
2. Analysis.
a. Applicable Law.
Appellant claims he was entitled to Proposition 36 probation. We disagree. The Substance Abuse and Crime Prevention Act of 2000, commonly known as Proposition 36, is codified at, inter alia, Penal Code sections 1210 and 1210.1. (People v. Dove (2004) 124 Cal.App.4th 1, 6 (Dove).) Penal Code section 1210.1 provides, in pertinent part, “(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), 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.... [¶]... [¶] (b) Subdivision (a) does not apply to...: [¶]... [¶] (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of... any felony.”
Penal Code section 1210, subdivision (a), provides that (as used in, inter alia, Penal Code section 1210.1), “[t]he term ‘nonviolent drug possession offense’ means the unlawful... transportation for personal use of any controlled substance identified in Section... 11055,... of the Health and Safety Code....”
Methamphetamine is identified as a controlled substance at Health and Safety Code section 11055, subdivision (d)(2).
A defendant has the burden of proving in the trial court that the defendant was convicted of a nonviolent drug possession offense. A trial court uses the preponderance of the evidence standard to determine whether a defendant was convicted of such an offense. A trial court need not state on the record the court’s finding that a conviction was not for such an offense. Where the trial court imposes a prison sentence, we imply a finding that a conviction was not for a nonviolent drug possession offense, and we sustain that finding if it is supported by substantial evidence. (Dove, supra, 124 Cal.App.4th at p. 10.) We note that, as to this issue, “[o]ur power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.]” (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.)
b. Application of the Law to the Facts of this Case.
In the present case, the trial court concluded appellant’s conviction on count 3 was not a conviction for “transportation for personal use” within the meaning of Penal Code section 1210, subdivision (a) because appellant transported methamphetamine to share it with Dawn H. The court therefore implicitly concluded that the conviction on that count was not for a “nonviolent drug possession offense” within the meaning of Penal Code sections 1210, subdivision (a) and 1210.1, subdivision (a). If appellant’s conviction on count 3 was not for the offense of transportation for personal use, the conviction was a nonqualifying conviction of a Penal Code section 1210.1, subdivision (b)(2) “felony” rendering Proposition 36 probation unavailable to appellant. As shown below, appellant’s conviction on count 3 was a nonqualifying felony conviction.
(1) Transportation to Share is Not Transportation for Personal Use.
There are three pertinent transportation scenarios here: (1) transportation for personal use, (2) transportation to share, and (3) transportation to sell. The threshold issue is essentially one of statutory interpretation, i.e., whether transportation to share is equivalent to transportation for personal use. For the reasons discussed below, we conclude it is not.
Insofar as the statutory language is involved, we note transportation to share requires more than transportation for personal use. Transportation to share involves a broader criminal intent. The focus or gravamen of transporting to share is not transportation for personal use, but transportation to keep some of the controlled substance while furnishing some so that the defendant and another person(s) may concurrently possess and/or use controlled substances together. The offense of transportation for personal use is intended to protect the transporter from the consequences of his or her own conduct, such as addiction to the transported substance, but transportation to share involves a person(s) other than the transporter and exposes such a person(s) to the harmful effects of the drug. (Cf. In re Ogea (2004) 121 Cal.App.4th 974, 981-984 (Ogea).)
We conclude transportation to share is not equivalent to “transportation for personal use” within the meaning of Penal Code section 1210, subdivision (a) and, therefore, a conviction for transportation to share is not a conviction for a “nonviolent drug possession offense” within the meaning of that subdivision but instead is a conviction for a nonqualifying felony with the result that a defendant convicted of that offense is ineligible for Proposition 36 probation. (Cf. Ogea, supra, 121 Cal.App.4th at pp. 981-984.)
None of appellant’s arguments compel a contrary conclusion. In particular, appellant argues he transported but without intent to distribute or sell, and “[b]ecause there was no evidence that appellant possessed the methamphetamine for sales, the transportation could only be found to be for personal use.” However, simply put, the trial court, having concluded that the transportation at issue in count 3 was not for personal use, was not required to conclude further that the transportation was not with intent to sell, i.e., to furnish for compensation. Nor was there any need for the trial court to determine appellant transported with intent to distribute, if the meaning of the term “distribute” is “divide among several or many.” (See Merriam-Webster’s Collegiate Dict. (10th ed. 1995) p. 338.) If, on June 11, 2006, appellant transported methamphetamine to share with Dawn H., he did not transport for personal use. This is true whether or not he intended to distribute or sell as discussed above.
Moreover, if appellant’s argument were correct that he transported for personal use as long as he did not transport to sell, the anomalous result would be that a conviction for transportation of kilos of a controlled substance to share with a person would be a qualifying conviction even though transportation to sell an ounce to the person would not be.
(2) There was Substantial Evidence that Appellant Transported to Share.
The remaining issue is whether there was sufficient evidence that on June 11, 2006, appellant transported methamphetamine to share it with Dawn H. There is no dispute appellant transported methamphetamine on that date. Moreover, there was evidence from the People’s case that, on that date, Dawn H. indicated to appellant that she wanted to be under the influence of methamphetamine and told him to meet her at her residence. Appellant later drove to her residence and said he was looking for someone with whom to smoke.
After Dawn H. invited appellant to her patio, the two smoked methamphetamine while her sister smoked marijuana. Appellant virtually put a pipe with methamphetamine in Dawn H.’s mouth and lit the pipe. When Dawn H.’s roommate came home, appellant and Dawn H. went elsewhere to finish smoking, and appellant gave Dawn H. inhalants to help her be under the influence. The trial court was not obligated to believe the defense evidence. We note appellant effectively conceded in his supplemental sentencing brief, and during sentencing argument, that he transported to share.
We conclude there was substantial evidence that, as to count 3, appellant transported methamphetamine, not for personal use, but to share it with Dawn H. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Appellant’s conviction on count 3 was therefore a nonqualifying felony conviction which rendered Proposition 36 probation unavailable to appellant.
None of appellant’s arguments compel a contrary conclusion on this issue. In particular, the fact that the jury acquitted appellant on count 2 was irrelevant. The acquittal merely established that the jury was not convinced beyond a reasonable doubt that appellant committed the offense of attempting to furnish methamphetamine to a minor. That fact is not dispositive of the issue of whether there was substantial evidence satisfying the preponderance of the evidence standard that appellant’s transportation as to count 3 was not for personal use. (Cf. Dove, supra, 124 Cal.App.4th at p. 11.) A fortiori, the trial court’s dismissal of count 1 because the jury was deadlocked was irrelevant. Moreover, appellant’s acquittal on count 2 pertained to an alleged offense committed on June 26, 2006, although the offense at issue in count 3 occurred on June 11, 2006.
There is no dispute that, on June 26, 2006, appellant transported methamphetamine. According to the People’s evidence, on June 22, 2006, Romo, pretending to be Dawn H., contacted appellant in the chatroom. The two discussed “getting high” and smoking methamphetamine together. On June 26, 2006, Romo again contacted appellant in the chatroom. Appellant asked Romo if she wanted to smoke, Romo answered yes, and appellant asked where they could smoke. Romo suggested a local park, and appellant indicated he had vodka and methamphetamine. Appellant later arrived at the park, and his vehicle contained, inter alia, a bag containing baggies of methamphetamine. The vehicle also contained two glass pipes and vodka. Much of our reasoning pertaining to the June 11, 2006 transportation applies with equal force to the June 26, 2006 transportation (count 4). Because count 4 involved transportation to share, appellant’s conviction on that count provided an additional reason why he was ineligible for Proposition 36 probation.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.