Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, No. FVI025011, John M. Tomberlin and Jules E. Fleuret, Judges.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marvin E. Mizell and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
A jury found defendant guilty of transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)). Defendant admitted that he suffered a prior conviction for violating section 11378 of the Health and Safety Code. (Health & Saf. Code, § 11370.2, subd. (a).) The trial court withheld pronouncement of judgment and granted defendant drug court probation, i.e., Proposition 36 probation. At a probation review hearing, defendant admitted that he violated the terms of his Proposition 36 probation. The trial court then sentenced defendant to state prison for a term of seven years.
The jury found defendant guilty of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), a lesser included offense of possessing cocaine base for sale (Health & Saf. Code, § 11351.5).
Defendant makes two contentions. First, defendant contends that the trial court did not properly advise him of his constitutional right to a jury trial prior to accepting his admission that he violated the terms of his probation. In support of this argument, defendant asserts that pursuant to Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), a defendant who has previously been granted Proposition 36 probation must be given a jury trial on the issue of whether he violated the terms of his probation, prior to being sentenced to prison, because a prison sentence exceeds the statutory maximum sentence once Proposition 36 probation has been granted. Second, defendant argues that the trial court erred by not staying his sentence for possessing a controlled substance because his acts of transporting a controlled substance and possessing a controlled substance constitute an indivisible course of conduct. (Pen. Code, § 654.) The People concede that defendant’s second contention is correct. We affirm the judgment as modified in this opinion.
FACTS
On July 18, 2006, around 2:00 a.m., Deputy Hernandez stopped defendant while he was driving in Victorville, and asked defendant if he had anything illegal in the vehicle. Defendant told the deputy he had marijuana stored in the car’s center console, which defendant then gave to the deputy. Deputy Hernandez asked defendant to exit the vehicle. As defendant stepped out of the car, an object fell from defendant’s “waistband area onto the ground.” Once the object landed, defendant “stepped on” the object. Deputy Hernandez placed defendant in handcuffs and “went to retrieve” the object, which had fallen onto the ground. The object was a package containing “8.03 grams” of cocaine base.
Deputy Hernandez searched defendant and defendant’s vehicle. The deputy found $4,471 in defendant’s wallet. The deputy did not find any “drug-related paraphernalia” and defendant “did not appear to be under the influence.” Deputy Hernandez opined that defendant possessed and transported the cocaine base for sale, rather than personal use, due to the amount of cash in defendant’s wallet, the lack of drug paraphernalia, defendant’s sobriety at the time of arrest, and the quantity of the cocaine base found, which was approximately 100 doses.
Defendant testified that he possessed and transported the cocaine base for his personal use. Defendant stated that the cash in his wallet came from the sale of property from his mother’s estate. A copy of a check from the estate was presented to the jury.
The jury found defendant guilty of the lesser included offense of simple possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and of transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)). At sentencing, the court found that defendant had transported the cocaine base “for personal use.” Defendant was then granted Proposition 36 probation.
On July 12, 2007, the court held a probation review hearing. A report from the probation department alleged that defendant failed to report for his scheduled appointment with the probation department; defendant did not contact his probation officer; and defendant did not enroll in substance abuse treatment. The probation department recommended that the court find that defendant had refused drug treatment and, therefore, rendered defendant ineligible for Proposition 36 probation.
Prior to accepting defendant’s admission of the alleged probation violations, the court informed defendant of the following: A formal hearing “is your right to have a hearing at which the district attorney would have the burden to prove these alleged probation violations. At that hearing you would be entitled to be represented by an attorney, and you would have all the constitutional rights that have been discussed with you in this case and at the time of your arraignment and at the time of taking your plea, except you wouldn’t have a jury trial.”
Defendant waived his rights, admitted the probation violations, and accepted the minimum recommended sentence of seven years in state prison “because of the possibility of receiving additional time if the matter went to a full hearing because of additional evidence that might come to light . . . .” The court sentenced defendant to state prison for four years for transporting cocaine base (Health & Saf. Code, § 11352, subd. (a)); three consecutive years for the prior conviction of violating Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2, subd. (a)); and two concurrent years for possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)).
DISCUSSION
A. Waiver of Jury Trial
Defendant contends the trial court erred by not advising him that he had the right to a jury trial on the issue of whether he violated the terms of his Proposition 36 probation. Defendant argues that, pursuant to Cunningham, a jury trial is required before a defendant on Proposition 36 probation is sentenced to prison because prison exceeds the statutory maximum sentence, once a defendant has been granted Proposition 36 probation. We disagree with defendant’s argument.
The People contend defendant forfeited this argument by failing to raise it in the trial court. We address the merits of defendant’s argument because the issue is easily resolved.
Defendant did not secure a certificate of probable cause. (Pen. Code, § 1237.5.) Nonetheless, we will address defendant’s argument because it appears that defendant is alleging an ineffective waiver of his constitutional rights. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)
In Cunningham, supra, 127 S.Ct. at page 871, the United States Supreme Court concluded that a jury must find facts that authorize the imposition of an upper term sentence because such a sentence exceeds the statutory maximum sentence.
Under the Proposition 36 sentencing scheme, a defendant convicted of a “nonviolent drug possession offense” must be granted probation, i.e., Proposition 36 probation. (Pen. Code, § 1210.1, subd. (a).) However, if evidence reveals that the defendant is “unamenable to the drug treatment provided,” then the trial court may revoke the defendant’s Proposition 36 probation. (Pen. Code, § 1210.1, subd. (d)(2).) If the defendant’s probation is revoked, then the defendant may be incarcerated “pursuant to otherwise applicable law without regard to the provisions of [section 1210.1].” (Pen. Code, § 1210.1, subd. (f)(1).)
In In re Varnell (2003) 30 Cal.4th 1132, our Supreme Court analyzed the Proposition 36 sentencing scheme in relation to the rule set forth in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, i.e., “any fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime must be submitted to a jury and proved beyond a reasonable doubt.” (In re Varnell, supra, at pp. 1141-1142.) Our Supreme Court concluded that sentencing a defendant to prison, rather than granting a defendant Proposition 36 probation, did not constitute a sentence in excess of the statutory maximum because when Proposition 36 is applied it “reduces the potential punishment.” (In re Varnell, supra, at p. 1142; see also People v. Dove (2004) 124 Cal.App.4th 1, 8-11.) We infer from our Supreme Court’s reasoning that, in the sentencing scheme of low terms, midterms, and upper terms, Proposition 36 probation functions as a very low term. In other words, Proposition 36 does not create an alternative statutory maximum of probation; it is simply an additional type of low term sentence. Accordingly, when the trial court advised defendant of his rights, it did not err by informing defendant that he did not have the right to a jury trial because the statutory maximum sentence did not convert to probation when defendant was granted Proposition 36 probation.
B. Sentence
Defendant argues that the trial court erred by not staying his sentence for possessing a controlled substance because his acts of transporting a controlled substance and possessing a controlled substance constitute an indivisible course of conduct. (Pen. Code, § 654.) The People support defendant’s argument. We agree.
Penal Code section 654 provides that a trial court may not punish a defendant under more than one provision if the defendant’s crimes result from an indivisible course of conduct. (People v. Siko (1988) 45 Cal.3d 820, 823.) Whether a course of conduct is divisible and, therefore, punishable by more than one section of the Penal Code is determined by the intent and objective of the defendant at the time of the offense; if all of the offenses were incident to one objective, the defendant may be punished under only one section of the Penal Code. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442-1443.)
It is the duty of the trial court to determine if a defendant has multiple criminal objectives at the time of the offense; if the court determines a defendant has more than one objective, then that finding will be upheld on appeal if supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
In both counts—transporting and possessing—the named controlled substance was cocaine base, and neither count referred to the marijuana in defendant’s possession. Both counts address actions that were commonly linked by defendant’s objective of moving the cocaine base from one place to another. Accordingly, we conclude defendant’s conduct arose from an indivisible course of conduct, as there is a lack of substantial evidence to support a finding that defendant had more than one criminal objective. Therefore, defendant’s sentence for count 2 must be stayed. (Pen. Code, § 654.)
We note that a defendant may not challenge an agreed upon sentence without a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 77-78.) In this case, defendant agreed to a seven-year sentence at the time he admitted the alleged probation violations. Nonetheless, we modify defendant’s sentence because the sentence for possessing a controlled substance was being served concurrently; therefore, defendant’s agreed upon total prison term of seven years will remain unchanged.
DISPOSITION
The superior court is directed to modify defendant’s sentence on count 1 to reflect that the sentence is stayed pursuant to Penal Code section 654. The superior court clerk is directed to correct the abstract of judgment and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., KING, J.