Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA055952, Martin Herscovitz, Judge.
Tracy A. Rodgers, 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, Paul M. Roadarmel, Jr., Michael R. Johnsen, and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant Antonio Sanchez appeals from the judgment entered following his convictions by jury of possession of cocaine and transportation of cocaine. He contends the trial court erred in failing to consider his eligibility for sentencing under Penal Code section 1210.1 (“Proposition 36”) and to strike his conviction for simple possession as a lesser included offense of transportation of cocaine. The sentence is reversed and the case remanded for resentencing.
Statutory references are to the Penal Code, unless otherwise indicated.
Pursuant to People v. Mooc (2001) 26 Cal.4th 1216, defendant also requested that we examine the transcript of the in camera hearing conducted after his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) was granted. Here, upon finding defendant had demonstrated good cause to discover information in one of the officer’s personnel and administrative records pertaining to “dishonesty, false arrest, illegal search and seizure, the fabrication of charges and/or evidence,” the trial court granted defendant’s motion and reviewed the potentially responsive documents in an in camera proceeding outside the presence of all persons except the custodian and his counsel. We have reviewed the sealed record of the in camera proceeding and conclude the trial court appropriately exercised its discretion in ruling on the material to be disclosed. (See Mooc, supra, 26 Cal.4th at p. 1229.)
FACTUAL AND PROCEDURAL BACKGROUND
During a traffic stop on June 7, 2007, officers recovered 2.61 grams of cocaine from a folded dollar bill inside defendant’s waistband and 55.37 grams of cocaine from a plastic baggie in the center console of his car.
Defendant is not challenging the trial court’s denial of his motion to suppress evidence (§ 1538.5).
On September 18, 2007, defendant was charged by amended information with possession for sale of cocaine (Health & Saf. Code, § 11351, subd. (a), count 1) and with transportation of cocaine (Health & Saf. Code, § 11352, subd. (a), count 2). The information specially alleged defendant had previously suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On November 21, 2008, the jury convicted defendant of simple possession, as a lesser included offense of possession of cocaine for sale, and of transportation of cocaine, with special findings defendant transported the cocaine found in his waistband and in the center console of the car.
In a bench trial on November 25, 2008, court found true the prior strike allegation.
Because defendant committed the current offenses while on bail in Los Angeles Superior Court case No. LA055814, a two-year on-bail enhancement (§ 12022.1) was also alleged in this case. However, case No. LA055814 was still pending on November 25, 2008, so the court continued trial on the on-bail enhancement allegation. Contrary to the clerk’s transcript, the reporter’s transcript does not show the on-bail enhancement allegation was adjudicated at the sentencing hearing.
At the sentencing hearing on January 21, 2009, defendant requested a lower or middle base-term sentence. In denying defendant’s request, the trial court summarized defendant’s criminal history, noting that apart from his 1985 conviction for assault with a firearm, defendant had felony drug-related convictions in 1984, 1989 and 1998, and a 2001 misdemeanor driving under the influence conviction. The court determined that defendant was a “recidivist mule or transporter” of significant amounts of cocaine.
The trial court denied defendant probation and sentenced him to state prison for 10 years (double the five-year upper term under the Three Strikes law) for transportation of cocaine (count 2). The court imposed and stayed sentence under section 654 for the lesser included offense of possession of cocaine (count 1). The issue of defendant’s eligibility for probation and drug treatment under Proposition 36 was never mentioned by either party or the court at sentencing.
The probation report stated only, “Pursuant to PC 1210, the exclusionary criteria have been reviewed and the defendant has been found ineligible for Proposition 36.”
DISCUSSION
1. The Trial Court Erred By Failing To Consider Defendant’s Proposition 36 Eligibility
Proposition 36, the “Substance Abuse and Crime Prevention Act of 2000,” is intended to divert nonviolent drug offenders convicted of simple drug possession and drug use from incarceration into community-based substance abuse programs. (See People v. Canty (2004) 32 Cal.4th 1266, 1280-1281; § 1210.1.)
Proposition 36 does not automatically apply to all defendants convicted of simple drug offenses. Instead, Proposition 36 establishes an eligibility requirement by defining the term “nonviolent drug possession offense” as “the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code.” (§ 1210, subd. (a), italics added.) Here, the jury convicted defendant of simple possession and of transportation of cocaine, but made no finding whether the transportation was “for personal use,” as that is not an element of the crime. (See People v. Glasper (2003) 113 Cal.App.4th 1104, 1115 (Glasper) [concluding nothing in Proposition 36 created a new crime of transportation for personal use].) Consequently, defendant’s convictions did not automatically determine his eligibility under Proposition 36.
To obtain the benefits of Proposition 36, a defendant initially “has the burden of proving that the possession or transportation was for personal use.” (People v. Dove (2004) 124 Cal.App.4th 1, 10 (Dove).) This determination is made by the trial judge, not the jury. (People v. Varnell (2003) 30 Cal.4th 1132, 1141-1144 (Varnell).) Even if a defendant meets this burden, Proposition 36 contains “exceptions to eligibility for otherwise eligible defendants,” which “can be summarized as: 1) conviction of prior strike offenses within five years; 2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; 3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof of unamenability to drug treatment. (§ 1210.1, subd. (b).)” (People v. Esparza (2003) 107 Cal.App.4th 691, 696.)
Proposition 36 is silent on the issue of burden of proof. In the absence of any express statutory guidance, courts have held the burden of proof falls upon defendants, who effectively seek to be relieved from serving the sentence they otherwise would have received for a drug conviction. “[W]e are convinced the intent of the electorate to strictly limit the use of Proposition 36 to those involved in simple drug possession for personal use would be frustrated were we to accept the argument that a defendant must be given Proposition 36 diversion unless the prosecution pleads and the jury finds that the felony of transportation was for something other than personal use.” (Glasper, supra, 113 Cal.App.4th at p. 1114, italics added.)
Because Proposition 36 reduces rather than increases criminal penalties, federal constitutional law does not require this factual issue to be submitted to a jury and proved beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 455] [due process clause permits sentencing findings to be proven by preponderance of the evidence rather than beyond a reasonable doubt where such findings do not result in a penalty beyond the statutory maximum]; see discussion in Varnell, supra, 30 Cal.4th at p. 1142; see also Dove, supra, 124 Cal.App.4th at pp. 7-11.)
Defendant does not challenge these principles. Instead, he faults the trial court for failing to make the required eligibility determination. Relying on People v. Harris (2009) 171 Cal.App.4th 1488 (Harris), defendant further contends the trial court was duty-bound to follow the jury verdict and special findings that he did not possess cocaine for sale, but instead possessed (and transported it) for his personal use. According to defendant, having been convicted of nonviolent drug possession offenses (§ 1210, subd. (a)), he was thus entitled to Proposition 36 probation and treatment unless the trial court were to find him subject to one of the enumerated eligibility exceptions (§ 1210.1, subd. (b)).
Defendant is correct the trial court erroneously failed to consider his eligibility for Proposition 36 probation and treatment. (See People v. Esparza, supra, 107 Cal.App.4th at. p. 696 [grant of Prop. 36 placement to eligible defendant not discretionary].) However, defendant misconstrues the verdict and findings such that his reliance on Harris is misplaced. In Harris, the jury convicted the defendant of transportation of cocaine base and specifically found “the transportation of the controlled substance as alleged... was for personal use within the meaning of... section 1210, [subdivision] (a).” It was this special finding that led the Harris court to conclude the trial court was required to grant the defendant Proposition 36 probation and treatment in the absence of any applicable eligibility exceptions on the face of the record. (Harris, supra, 171 Cal.App.4th at p. 1497.) No such finding, either express or implied, was made in this case. Here, in convicting defendant on count 2, the jury expressly found he was guilty of transporting both the cocaine found in his waistband and in the center console of his car. Unlike Harris, nothing in this special verdict can be interpreted as constituting a finding defendant was transporting cocaine for his personal use within the meaning of section 1210, subdivision (a).
Similarly, the fact the jury acquitted defendant on count 1 of possession of for sale and convicted him of the lesser included offense of simple possession does not constitute an implied finding he possessed the cocaine for personal use. It merely meant the trier of fact found there was not evidence proving beyond a reasonable doubt that defendant possessed the cocaine for sale. (See Dove, supra, 124 Cal.App.4th 1, 11 [jury’s “acquittal on the charge of possession for sale did not bind the trial court. The acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale.”]; see Glasper, supra, 113 Cal.App.4th at p. 1113.)
The defendants in Glasper and Dove were charged with transportation of cocaine base and with possession of cocaine base for sale. The juries in both cases convicted the defendants of transportation and simple possession and acquitted them of possession for sale. The trial courts in both cases found that the transportation was not for personal use and so denied probation. (Glasper, supra, 113 Cal.App.4th at pp. 1107-1108; Dove, supra, 124 Cal.App.4th at pp. 3-4.)
The trial court improperly failed to consider whether defendant was eligible for Proposition 36 probation and treatment. The determination, in the first instance, of whether defendant possessed and transported the cocaine for personal use required a separate finding by the trial court, based on the preponderance of the evidence. (§§ 1210, subd. (a); 1210.1., subd. (b).) Should defendant satisfy his burden of proof that his convictions were for nonviolent drug possession offenses, the court must then determine whether he is subject to any of the exceptions to eligibility for otherwise eligible defendants. (§ 1210.1, subd. (b).) Should defendant be found not eligible for Proposition 36 treatment and probation, the trial court may reimpose a state prison sentence.
2. The Trial Court Did Not Err By Failing to Strike His Conviction on Count 1 as a Lesser Included Offense of Count 2
Defendant contends his conviction for simple possession of cocaine should have been stricken as a lesser included offense of transportation of cocaine. As defendant acknowledges, the California Supreme Court has previously rejected this argument and determined that one need not possess a substance to be found guilty of transporting the substance. Possession is not an “essential element” of transportation and a defendant may be transport a drug without possessing it. (People v. Rogers (1971) 5 Cal.3d 129, 134 (Rogers); People v. Watterson (1991) 234 Cal.App.3d 942, 947; see also People v. Reed (2006) 38 Cal.4th 1224, 1229 [only the statutory elements test should be used to determine whether one offense is necessarily included in another offense].)
Drawing his analysis from the law of aiding and abetting, defendant attacks the underlying reasoning of Rogers. He further asserts Rogers is not binding with respect to issues the court did not reach. We disagree with defendant because Rogers held the elements of the two offenses are not identical. This is the dispositive issue before us on appeal. Although defendant asks this court to reject the holding of Rogers, we cannot do so; we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment of conviction is affirmed, the sentence is reversed, and the case is remanded to the trial court for resentencing consistent with this opinion.
We concur: PERLUSS, P. J. JACKSON, J.