Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court County of Ventura No. 2006016252. Edward Brodie, Judge.
Mark Brown, 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, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Aaron James Pierce was charged with transportation of a controlled substance, methamphetamine (count 1; Health & Saf. Code, § 11379, subd. (a)) and possession for sale of a controlled substance, methamphetamine (count 2; Health & Saf. Code, § 11378). It was alleged in the information that he had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Appellant entered a not guilty plea and denied the special allegations.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant subsequently withdrew his plea and entered into a negotiated plea agreement. He pleaded guilty to count 1 and admitted the truth of the five prior prison term allegations. The court indicated that the remaining counts would be dismissed at the time of sentencing.
The trial court found appellant ineligible for probation. It struck three of the five prior prison term allegations pursuant to section 1385 and sentenced him to four years in state prison, consisting of the low term plus one year each for the remaining two prior prison term allegations. Appellant requested a certificate of probable cause, which the trial court granted. He contends that the trial court erred by denying him Proposition 36 probation. We disagree and affirm.
FACTS
Appellant was walking towards a residence on Warner Street when he was stopped and searched by Corporal Bernadette Compean of the Ventura Police Department. She found two bindles of a substance that later tested positive for methamphetamine. The parties stipulated that the bindles weighed 4.69 grams and 3.08 grams respectively.
The probation report indicated that the bags of methamphetamine weighed 4.79 grams and 3.11 grams.
Appellant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and agreed to speak to Compean. In a taped interview, he told her he had received a call from two people who wanted to purchase methamphetamine. Appellant told Compean he only had enough at his residence for one person, so he left with another person, obtained the drug and returned to his residence to give it to the second individual. Compean testified that, based on her training and experience, it was her opinion that appellant possessed the methamphetamine for the purpose of sale.
Negotiated Plea and Sentencing Hearing
When appellant entered into the negotiated plea, he indicated to the court that he understood that he was admitting his five prior prison terms convictions and would be sentenced to no more that four years in state prison. Appellant testified that no promises had been made as to the length of his sentence, that he was entering his plea freely and voluntarily and had initialed the felony disposition statement. The court found that appellant understood the nature of the charges against him and the consequences of his plea and had freely and voluntarily given up his rights. Appellant initialed a waiver (People v. Harvey (1979) 25 Cal.3d 754) agreeing that dismissed charges could be considered in determining his sentence.
At the sentencing hearing, appellant's counsel indicated that appellant wished to withdraw his plea. Appellant had given his counsel a handwritten motion requesting Proposition 36 probation. Counsel informed the court that he had told appellant he was not eligible for Proposition 36. The court stated that it had read and considered the probation officer's report and found a factual basis for the plea. Defense counsel indicated that he would submit the matter upon the court's previous (4 year) commitment and the probation report.
The court then stated, "[Appellant], you wanted to say something?" Appellant indicated that he had been convicted only of transportation and the sales count was dismissed, therefore he was entitled to Proposition 36 probation. The following exchange occurred:
"[The Court]: [D]o you believe he's eligible for Prop?
"[Defense Counsel]: My understanding under the current system, that he's not. I believe if he had been--that would have been explored and would have, you know, he would have been offered that.
"[The Court]: Well, I think somewhere along the lines somebody has to make a finding that if it's transportation, that it was for personal use. Is that the reason that you think he's not eligible?
"[Defense Counsel]: That's my understanding.
"[The Court]: And the People's position is this was not just for personal use.
"[District Attorney]: . . . Yes, that is our position, just based on some of the statements he gave during his Miranda interview in this current situation as far as him admitting that he was going to furnish portions of the methamphetamine to some of his friends."
Appellant stated to the court that the drugs found on him were for his personal use. He said that the man with him was carrying drugs for a third person. The court responded, "Two baggies, 4.79 and 3.11. Well, it does not look like you're eligible, based upon this report. That's the finding of the probation department. That's the finding of the district attorney. [¶] . . . [¶] [I]t looks like he was engaged with another gentleman with the transportation of those drugs for the purpose of spreading it around a little bit to other people." ". . . The Court does make a finding that he is not Prop 36 eligible, based upon the fact[s] of this case. And, therefore, the Court cannot grant him Prop 36."
DISCUSSION
Proposition 36
"'Proposition 36 requires the court to grant probation with a drug treatment condition to any person convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation.'" (People v. Guzman (2003) 109 Cal.App.4th 341, 346.) Proposition 36 is codified under section 1210.1 and provides, in part, "[A]ny 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 ." (§ 1210.1, subd. (a); People v. Floyd (2003) 31 Cal.4th 179, 183.) A 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 . . . of any controlled substance." (§ 1210, subd. (a).)
Appellant claims that the trial court's finding that the methamphetamine was not for personal use allowed the court to impose a sentence beyond the statutory maximum, by sentencing him to a prison term, rather than Proposition 36 probation. Citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] and Apprendi v. New Jersey (2000) 530 U.S. 466, he claims that the court imposed a sentence above the statutory maximum based on facts that had not been tried to a jury.
We reject this argument because Apprendi does not apply to a personal use finding under section 1210.1. (People v. Dove (2004) 124 Cal.App.4th 1, 8; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115; People v. Barasa (2002) 103 Cal.App.4th 287, 294.) Section 1210.1 does not enhance, but reduces the potential punishment. (In re Varnell (2003) 30 Cal.4th 1132, 1142.) "[A] trial court's finding that a defendant is ineligible for Proposition 36 sentencing does not increase the penalty for a crime beyond the statutory maximum and therefore does not violate Apprendi."(Dove, at p. 8.) Appellant acknowledges that his argument has been rejected in Dove and Varnell, but contends those cases "misconstrue Proposition 36 [and] the Apprendi line of cases." His argument is without merit. The trial court made factual findings which resulted in a sentencing choice within the statutory range.
Ineligibility for Proposition 36 Probation
Appellant contends that the trial court abused its discretion by making a finding that the methamphetamine was not for personal use because his plea did not include such an admission.
Proposition 36 probation may be available to a defendant "where the transportation is of an amount for personal use . . . ." (People v. Barasa, supra, 103 Cal.App.4th 287, 295 [guilty plea to one count of possession for sale and one count of possession for transporting a controlled substance].) Where transportation is alleged and proven, appellant has the burden to establish that it was not for personal use, because Proposition 36 provides an exception to the sentencing scheme. (Id. at p. 296.) "'Thus, if a plaintiff presents evidence to establish each element of its case, the defendant has the burden of going forward with its own evidence as to those issues. This does not alter the ultimate burden of proof, which rests with the plaintiff to prove each of the relevant facts supporting its cause of action.' [Citation.]" (Ibid.)
In making its finding that appellant was ineligible for Proposition 36 probation, the trial court relied on appellant's guilty plea and the factual basis for the plea. This would have included the police report, preliminary hearing transcript and the probation report. The probation officer specified that appellant had a criminal record spanning several decades. It stated that "[appellant] was not only using drugs, but helping to supply drugs to others." In a lengthy letter submitted to the trial court, appellant denied having ever having been a drug dealer and recounted his criminal history, emphasizing his need for rehabilitation rather than incarceration. The court indicated that it had read and considered appellant's letter and would make it a part of the probation file.
If the matter had gone to trial, appellant would have faced a possible prison term of nine years. Instead, he chose to enter into a negotiated sentence and acknowledged to the trial court that he understood that his plea was conditioned on no more than four years in state prison. We note that here, as in Barasa, it is unlikely appellant would have persuaded a sentencing judge that the drugs transported were for personal use only, due to their quantity, packaging and appellant's admissions to law enforcement. (See People v. Barasa, supra, 103 Cal.App.4th at p. 296.) We conclude that the fact of non-personal use was implicit in appellant's plea. The trial court was not required to make any additional finding to sentence him to state prison.
Appellant claims that the trial court abused its discretion by considering "the uncharged conduct of a third party who was not a co-defendant" and "punish[ed] [him] for another person's behavior in that other person's transportation [was] for non-personal use . . . ." contradicting the express objectives of Proposition 36. Appellant bases his argument on the trial court's statement that ". . . it looks like [appellant] was engaged with another gentleman with the transportation of those drugs for the purpose of spreading it around a little bit to other people."
Appellant misconstrues the trial court's statement. The court did not base its finding that appellant's transportation was not for personal use simply because appellant was in the presence of a person who possessed drugs for another. Appellant disregards the trial court's express finding that it was appellant who transported the methamphetamine. Moreover, appellant admitted at the preliminary hearing and in a recorded police interview that he was obtaining the drugs for a third party.
Supplemental Brief
In the opening brief, appellate counsel indicated that appellant might choose to file a supplemental brief. After respondent filed its brief, appellant submitted a letter brief entitled, "objection to the respondent's brief [and] Declaration of Aaron James Pierce." We accepted the brief for filing and considered appellant's contentions. He claims that he should have been permitted to withdraw his plea because trial counsel was ineffective and that he entered a guilty plea only because the sales count had been dismissed. Appellant's brief is simply an attempt to reargue the facts surrounding the offense and cannot be considered.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.