Opinion
F041150.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO MACIAS, Defendant and Appellant.
James E. Sherriff, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
A jury acquitted appellant Ignacio Macias of possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378), but convicted him of transportation of methamphetamine (Health & Saf. Code, § 11379) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), both felonies, and two misdemeanors, viz., driving without a valid drivers license (Veh. Code, § 12500, subd. (a)) and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The court suspended imposition of sentence and placed appellant on probation for 60 months with various terms and conditions, including that he serve 10 months in county jail.
On appeal, appellant contends the court erred in refusing his motion that his conviction of driving without a license be reduced from a misdemeanor to an infraction. The granting of that request, appellant further contends, would have made him eligible for the mandatory probation and drug treatment provisions of the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) (Pen. Code, § 1210 et seq.). Alternatively, appellant contends his misdemeanor conviction of driving without a license did not render him ineligible for mandatory probation and drug treatment under Proposition 36. We will affirm.
Except as otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDRUAL BACKGROUND
Facts
On September 27, 2001, City of Atwater Police Officer Scott Duncan effected a stop of a vehicle driven by appellant, after the officer noticed the vehicle had expired license plate tags. After making the stop, Officer Duncan learned from dispatch that appellant was not licensed to drive, at which point the officer placed appellant under arrest. Shortly thereafter, Officer Duncan searched appellants vehicle and found a thermos, inside of which were four baggies containing a total of 51.88 grams of methamphetamine.
Appellant testified to the following. He found the thermos containing the contraband by the side of the road and thought it might belong to a coworker. He did not know it contained methamphetamine; he had never knowingly driven with methamphetamine in his car; he had never purchased methamphetamine with his earnings; and he does not use methamphetamine.
Procedural Background
Proposition 36 mandates probation and drug treatment and prohibits incarceration for any person convicted of a "nonviolent drug possession offense," unless the person is disqualified from probation and treatment under subdivision (b) of section 1210. (§ 1210.1, subd. (a).) Persons disqualified under that subdivision include: "(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." (§ 1210.1, subd. (b)(2), emphasis added.)
After the jury rendered its verdict and prior to sentencing, appellant, as indicated above, moved in the trial court for an order reducing his conviction of driving without a license from a misdemeanor to an infraction. He argued that a conviction of an infraction would not make him ineligible under Proposition 36 and therefore the court should reduce his conviction of driving with a suspended license to an infraction in order to make him Proposition 36 eligible. The prosecutor, in oral argument at the hearing on the motion, argued, inter alia, that the court did not have the authority to reduce the offense to an infraction at any time, and certainly not "at this stage of the proceeding," i.e., after the jurys verdict.
The court, in denying appellants motion, stated: "Well, I understand the arguments of counsel. I understand the position of the parties. I just do not feel that at this stage of the game its the courts — it should be the courts business to reduce what has been decided by a jury, so the motion to reduce the 12500 is denied."
DISCUSSION
Appellant first argues, based on the courts statement quoted above, that the court mistakenly believed it did not have the discretion to reduce his Vehicle Code section 12500 conviction to an infraction, and therefore the sentence must be vacated and the matter remanded to allow the court to exercise that discretion. The major premise of this claim is that the court had such discretion, a point that the People dispute. We will assume without deciding that appellants major premise is correct, consider his claim on the merits and conclude, as we explain below, that appellants contention is without merit.
Appellant bases his claim that the trial court had the discretion to reduce his conviction of driving without a license to an infraction on section 17, subdivision (d) which provides, in relevant part, that a violation of certain enumerated statutes, including Vehicle Code section 12500, "is an infraction when: . . . [¶] (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint."
Error is not presumed but must be demonstrated. (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.) To prevail on a claim that a court misunderstood the scope of its sentencing discretion a defendant must "affirmatively show" such misunderstanding. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) The courts remarks, quoted above, are ambiguous as to whether the court believed it lacked discretion to take any action other than to refuse to reduce the conviction in question to an infraction. The courts statement admits of the interpretation that the court did not doubt it had discretion to reduce the offense in question, but simply concluded it was inappropriate to do so. On this record, appellant has not demonstrated error.
Appellant next argues that, assuming the court properly understood its discretion to reduce the Vehicle Code section 12500 conviction to an infraction, in refusing to do so it abused that discretion. He suggests that in order to determine the scope of the courts discretion, we should be guided by People v. Williams (1998) 17 Cal.4th 148. In that case, our Supreme Court held that in ruling whether to strike a prior serious and/or violent conviction allegation or finding under the "three strikes" law (§§ 667, subds. (b)-(i); 1170.12) "`in furtherance of justice" pursuant to section 1385, or in reviewing such a ruling, a court must ultimately determine whether "the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.) As best we can determine, appellant argues that the denial of a motion to make a defendant Proposition 36 eligible is an abuse of discretion unless the defendant can be "deemed outside the spirit" of Proposition 36. Appellant argues that he cannot be deemed "outside the spirit" of the law because he is precisely the kind of "nonviolent drug offender[]" for whom the mandatory no-incarceration, treatment and probation provisions of Proposition 36 were meant, and therefore it was an abuse of discretion to refuse to reduce his Vehicle Code section 12500 conviction to an infraction, an action that, appellant asserts, would have made him Proposition 36 eligible. We disagree.
To determine the "spirit" of Proposition 36, we look to the laws "declared purpose," which is "to `divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses." (Prop. 36, §3.) (In re DeLong (2001) 93 Cal.App.4th 562, 566, emphasis added.) And in determining what constitutes a "simple drug possession or drug use offense[]," we look to the statute itself.
As indicated above, section 1210.1, subdivision (a) provides for mandatory drug treatment and probation for any person convicted of a "nonviolent drug possession offense," unless the person is disqualified under other provisions of the law. A "nonviolent drug possession offense" is defined, in relevant part, as "the unlawful possession, use, or transportation for personal use of [enumerated controlled substances, including methamphetamine]." (§ 1210, subd. (a), emphasis added.)
Appellant suggests that his acquittal of possession of methamphetamine for purposes of sale is tantamount to a finding that the drugs he possessed and transported were for his personal use. We disagree. The mere fact that the jury acquitted appellant of the charge of possession of methamphetamine for purposes of sale does not compel the conclusion that appellant possessed and transported the contraband found in his car for personal use. For example, as the prosecutor pointed out at the hearing on appellants motion, appellant could have been transporting the contraband for the purpose of delivering it to somebody else.
As indicated above, at trial the People presented evidence that the amount of methamphetamine found in appellants car was nearly six grams, and appellant testified he did not use methamphetamine. From this evidence, the court reasonably could have concluded that appellant was not engaged in the transportation of drugs for his own personal use and therefore was not the kind of nonviolent drug offender to whom Proposition 36 was meant to apply. Therefore, the court did not abuse its discretion in refusing to make appellant eligible under Proposition 36. (People v. Welch 1993) 5 Cal.4th 228, 234 [a court abuses its discretion "when its determination is arbitrary or capricious or `"exceeds the bounds of reason, all of the circumstances being considered""].)
Finally, appellant argues that his conviction of violating Vehicle Code section 12500 does not disqualify him from the coverage of Proposition 36 because that offense "should not be considered as an act separate from" the conduct upon which his conviction of transportation of methamphetamine, a nonviolent drug possession offense, was based. There is no merit to this contention.
Appellant bases this claim on People v. Gimenez (1995) 36 Cal.App.4th 1233 and In re Gaspar D. (1994) 22 Cal.App.4th 166. These two cases, however, address the issue of whether a nexus exists between a criminal offense and the offenders use of a motor vehicle sufficient to justify the suspension of the offenders drivers license pursuant to Vehicle Code section 13350. Thus, these cases have no bearing on the instant case. Appellant, in effect, asks us to rewrite Proposition 36 to provide that under certain circumstances, conviction of a misdemeanor unrelated to drug use is not a disqualifying factor. This we will not do. (Cf. In re DeLonnie S. (1992) 9 Cal.App.4th 1109, 1114 ["[i]t is not the courts function to amend duly enacted legislation by judicial fiat"].)
Vehicle Code section 13350, subdivision (a)(2) provides in pertinent part: "(a) The [Department of Motor Vehicles] immediately shall revoke the privilege of any person to drive a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of any of the following crimes or offenses: . . . [¶] (2) Any felony in the commission of which a motor vehicle is used, except as provided in Section[s] 13351, 13352, or 13357."
DISPOSITION
The judgment is affirmed.