Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR186610
Siggins, J.
John Lamont Winn appeals his convictions for transportation and possession of methamphetamine. He contends he was improperly convicted of the possession charge because it was a necessarily included offense in the transportation charge. He also argues the trial court erroneously concluded he was not eligible for probation pursuant to Proposition 36 (Pen. Code, §§ 1210 et seq.). We disagree and affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Vallejo Police Officer Jason Potts conducted a traffic stop of defendant’s car at approximately 2:00 a.m. for speeding and weaving in and out of its lane. Defendant was the only person in the car. Officer Potts removed him from the car and searched it. He found a torn empty plastic bag containing a white residue on the driver’s side floor. On the floorboard he found between five and 15 chunks of a crystal-like substance. Officer Potts told defendant he was under arrest for possession of crystal methamphetamine and defendant stated “It was only a sack of crystal.” The crystalline substance weighed .51 grams and tested positive for methamphetamine and cocaine.
Officer Potts also found a digital scale in the car’s center console and a cell phone that rang continuously during his encounter with the defendant. The cell phone also contained a text message consistent with a narcotics sale. Defendant had $299 in his pants pocket and $600 in his wallet. Officer Potts was qualified as an expert witness concerning sales of methamphetamine. Potts testified that he believed the denominations of the currency in defendant’s possession indicated the narcotics were possessed for sale, as did the cell phone with the “incriminating text message consistent with sales” and the fact defendant had no user paraphernalia.
Defendant was charged with transportation of methamphetamine and possession of methamphetamine for sale. He unsuccessfully moved to suppress the evidence. At trial, defendant’s wife testified that when defendant picked her up from work earlier in the evening of his arrest, he had money that he had earned doing odd jobs, and she gave him an additional $700 to pay bills. During the drive home they got into an argument. He dropped her off and she did not see him again that evening. Defendant’s 12-year-old granddaughter testified that defendant had approximately $300 with him that evening, and that she saw her grandmother give him some more money. Officer Potts testified in rebuttal that defendant told Potts he won $299 while gambling with drug dealers and not as earnings from odd jobs. He said the $600 was his wife’s bill money. Defendant also identified himself to Officer Potts as a crystal methamphetamine user.
The information also alleged a prior conviction and four prison terms. The prison term allegations were later dismissed on the People’s motion.
The jury found defendant guilty of transportation, not guilty of possession for sale, and guilty of simple possession of methamphetamine. The court denied probation and sentenced defendant to six years in state prison on the transportation conviction, with punishment stayed pursuant to section 654 on the conviction for possession. Defendant timely appealed.
DISCUSSION
A. Necessarily Included Offense
Defendant argues his conviction for possession of methamphetamine must be reversed because the crime of possession was necessarily included in his conviction for the crime of transportation of methamphetamine. California law generally permits multiple convictions, but not multiple punishments, for crimes arising out of the same act or course of conduct. But multiple convictions based on a necessarily included offense are not allowed when the statutory elements of the lesser included offense are part of a greater crime. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) In adopting the statutory elements rule of Reed, our Supreme Court rejected an analysis that turned on the nature of the accusatory pleading. “ ‘[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’ ” (Id. at p. 1229.)
“Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed, supra, 38 Cal.4th at p. 1227.) When it comes to analysis of the statutory elements, our Supreme Court has already concluded that “possession of [drugs] is not a necessary element of the offense of transportation.” (People v. Rogers (1971) 5 Cal.3d 129, 131 [defendant’s acquittal on possession charge did not necessarily preclude his conviction for transportation of marijuana].) In Rogers the court explained: “Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may ‘transport’ marijuana or other drugs even though they are in the exclusive possession of another. [Fn. omitted.]” (Id. at p. 134.) Accordingly, the application of the statutory elements test as articulated in Reed leads to the conclusion, under Rogers, that defendant’s conviction of possession of methamphetamine is not a lesser included offense to his conviction for transportation of methamphetamine.
Defendant argues that “the Supreme Court’s decision in Rogers, . . . was incorrect,” but acknowledges we are duty bound to follow our Supreme Court’s decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant argues that a footnote in Rogers creates an exception to the rule that should control in this case. There the court observed that “[i]n cases where defendant’s possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges.” (People v. Rogers, supra, 5 Cal.3d at p. 134, fn. 3.) But more recent cases reject this argument. (See People v. Watterson (1991) 234 Cal.App.3d 942, 947 [fn. 3 of Rogers disregarded because it was dicta]; People v. Thomas (1991) 231 Cal.App.3d 299, 305 [“By definition possession is not an essential element of transportation because the latter offense can be committed without also committing possession”].)
The Watterson court also noted that the cases cited in footnote 3 of Rogers were themselves inconsistent, and they in turn cited earlier cases that “[did] not unanimously support this conclusion.” (People v. Watterson, supra, 234 Cal.App.3d at pp. 945-946.)
Moreover, in Reed our Supreme Court stated that “[t]he continuing validity of the rule stated in [the older cases mentioned in footnote 3 of Rogers] is dubious in light of more recent events [citing Watterson and Thomas].” (People v. Reed, supra, 38 Cal.4th at p. 1228, fn. 2; see also People v. Murphy (2007) 154 Cal.App.4th 979, 983-984 [“[u]nlike the former test, the current test of a necessarily included offense does not encompass an offense in which the facts established by the evidence at trial make it impossible to commit one offense without also committing another,”]; People v. Thomas, supra, 231 Cal.App.3d at pp. 305-306 [rejecting defendant’s attempt to expand the “ ‘necessarily included’ definition to encompass cases in which the facts make it impossible to commit one offense without also committing another”].) Defendant was properly convicted of both possession and transportation of methamphetamine, because the former offense is not necessarily included in the latter under the statutory elements test articulated in Reed. (People v. Reed, supra, at pp. 1228-1229 & fn. 2; People v. Rogers, supra, 5 Cal.3d at p. 134; People v. Watterson, supra, 234 Cal.App.3d at p. 947; People v. Thomas, supra, at p. 305.)
B. Defendant’s Eligibility for Probation Pursuant to Proposition 36
The Substance Abuse and Crime Prevention Act of 2000, enacted by the voters in Proposition 36, added sections 1210 and 1210.1 to the Penal Code. (People v. Glasper (2003) 113 Cal.App.4th 1104, 1112.) Section 1210.1, subdivision (a) provides, in relevant part, that “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.” Section 1210, subdivision (a), defines the term “ ‘nonviolent drug possession offense’ ” to mean “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 . . . .”
Defendant argues that he was entitled to receive probation under section 1210.1 because the jury found him not guilty of possessing methamphetamine for sale, and instead convicted him of simple possession of methamphetamine. But at sentencing the trial court found, by a preponderance of the evidence, that defendant did possess the drugs for sale and concluded he was therefore ineligible for probation under section 1210.1.
The court also noted defendant’s past failure on Proposition 36 probation, and stated that even if defendant were statutorily eligible, the court would not impose probation for the reasons stated in the probation report. In his sentencing memorandum, defendant admitted seven prior drug-related offenses, additional convictions for theft-related offenses, and two state prison terms.
Defendant argues the jury’s implicit finding that he did not possess the methamphetamine for sale was binding on the trial court through the doctrine of collateral estoppel. But defendant failed to argue collateral estoppel in the trial court and the issue is therefore waived. (People v. Neely (1999) 70 Cal.App.4th 767, 782-783.) But even if it were not, case law holds “the 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 . . . the trial court was free to redetermine the personal use issue based on the preponderance of the evidence.” (People v. Dove (2004) 124 Cal.App.4th 1, 11; see also United States v. Watts (1997) 519 U.S. 148, 157 [“a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence”].) The trial court’s determination that defendant possessed the methamphetamine for sale was supported by substantial evidence. The digital scale found in defendant’s car, the denominations and amount of currency found on his person, the text message found on defendant’s cell phone that was “consistent with sales of narcotics,” and the lack of user paraphernalia found when defendant was arrested all pointed to his possession of methamphetamine for sale.
In fact, defendant’s sentencing memorandum conceded: “The defense does not dispute that this court has the authority to make a finding of the purpose of the transportation, notwithstanding a jury’s verdict to the contrary.”
Defendant also relies upon Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny to argue the jury was required to find the facts which determined his eligibility for Proposition 36 probation. A similar argument was considered and rejected in Dove where the court followed case law that holds a trial court’s finding that a defendant is ineligible for Proposition 36 sentencing does not increase the criminal penalty beyond the statutory maximum, and therefore does not implicate Apprendi. (People v. Dove, supra, 124 Cal.App.4th at pp. 8-9, citing People v. Barasa (2002) 103 Cal.App.4th 287, 294 [“ ‘section 1210.1 effects a sentencing reduction, rather than an increase in the “prescribed statutory maximum” sentence’ ”]; People v. Glasper, supra, 113 Cal.App.4th at p. 1115 [“ ‘the issue concerns a sentencing provision which lightens, rather than increases, punishment for crime’ ”]; and In re Varnell (2003) 30 Cal.4th 1132, 1141-1142 [“no finding by the trial court increased the penalty beyond the statutory maximum . . . when it applies, section 1210.1 reduces the potential punishment”].) Like the court in People v. Dove, supra, at page 9, we follow Varnell’s holding and conclude that a trial court’s finding under section 1210.1 that a defendant is ineligible for probation does not increase the penalty beyond the statutory maximum. (In re Varnell, supra, at pp. 1141-1142.)
Defendant argues that Dove, Glasper, and Barasa were incorrectly decided. Defendant contends “whether a defendant possessed narcotics for personal use is a factual question,” the resolution of which determines whether he will be sentenced to probation or will be eligible for state prison. Defendant argues that under United States v. Booker (2005) 543 U.S. 220, “determination of a factual question having mandatory impact on the sentence had to be determined by the jury.” In this light, defendant reasons that “[b]ecause a grant of probation is mandatory under section 1210.1, the maximum punishment for any defendant convicted of possession or transportation of narcotics is probation. It is only when the additional factual finding is made the defendant possessed the narcotics for some purpose other than personal use [that] the defendant become[s] eligible for a state prison sentence.”
While under Proposition 36 probation is mandatory for those convicted of nonviolent drug possession offenses, the jury’s verdict did not establish that defendant committed his offenses for “personal use” as that term is defined in section 1210. Defendant was thus not entitled to probation based solely on the jury’s verdict. Moreover, imprisonment does not exceed the maximum punishment under Proposition 36, because “when a defendant is ineligible [for Proposition 36 treatment], a prison sentence is equally mandatory.” (People v. Dove, supra, 124 Cal.App.4th at p. 10.)
To obtain the benefits of Proposition 36, the defendant “has the burden of proving that the possession or transportation was for personal use.” (People v. Dove, supra, 124 Cal.App.4th at p. 10; see also People v. Glasper, supra, 113 Cal.App.4th at pp. 1115-1116; People v. Barasa, supra, 103 Cal.App.4th at pp. 295-296.) Here, the trial court concluded defendant did not meet his burden and the court’s finding that defendant possessed methamphetamine for sale is supported by substantial evidence. (See People v. Dove, supra, at p. 10.)
C. Requested Special Jury Finding
Defendant argues the trial court erred when it refused defense counsel’s request to have the jury make a special finding of fact regarding whether defendant transported the methamphetamine for personal use or for sale. He argues Apprendi and its progeny required the jury to determine the facts which would determine whether defendant was eligible for Proposition 36 probation. But we have explained above why Apprendi does not apply to such a determination, and have rejected defendant’s argument that the court erred when it determined the personal use issue based on the preponderance of the evidence. (See People v. Dove, supra, 124 Cal.App.4th at p. 11.)
The court explained that “in light of the defense request for a specific finding, it is my opinion from the jury’s perspective that if they find that he was in simple possession and not possession for purposes of sale, then they would be concluding that the possession was [for] personal use and the transportation was for personal use because of their finding as to Count 2. But that’s without prejudice, then, to the People arguing that it doesn’t matter what the jury found in that regard, if it is truly an issue for the Court to decide.” Defense counsel agreed she could “live with that [ruling].”
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.