P. v. Figueroa

Filed 2/7/08 P. v. Figueroa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Vicki Marolt Buchanan, 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, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant guilty of transporting a controlled substance.^[1] (Health & Saf. Code, 11379, subd. (a).) Defendant admitted suffering a prior conviction that resulted in a prison term.^[2] (Pen. Code, 667.5, subd. (b).) The court sentenced defendant to state prison for a term of four years. Defendant contends the court violated his Sixth Amendment rights to a jury trial and to proof beyond a reasonable doubt by finding a fact that caused him to be ineligible for Proposition 36 probation.We affirm the judgment.

FACTS

On October 9, 2006, San Bernardino County Sheriffs Deputy Alvarado stopped defendant while he was driving in Adelanto. Defendant stopped his vehicle in a residential driveway. Defendant exited his vehicle and moved to the front of the vehicle. Defendant then returned to the drivers seat of his vehicle. Deputy Alvarado approached defendant and placed him in the back of the patrol car. Deputy Alvarado then investigated the front of defendants vehicle. The deputy found a plastic bag right on top of the bumper, near where defendant had been standing. The plastic bag contained 6.92 grams or approximately one-quarter ounce of ice methamphetamine, which is a high-quality methamphetamine. The amount of methamphetamine found in defendants possession would last for several weeks, if consumed by a long-term methamphetamine addict. Deputy Alvarado found $320, in $20 bills, in defendants possession, but did not find plastic baggies, a cell phone, pager, scales, or pay-owe sheets. San Bernardino County Sherriffs Detective Ohaneessian opined that the methamphetamine in defendants possession was for sale, due to the money defendant had in his possession, the quantity of drugs in defendants possession, the failure to find any paraphernalia associated with drug use, such as a pipe, and defendants act of distancing himself from the drugs when stopped by the deputy, which is not typical of drug users.

Defendants trial counsel requested that defendant be sentenced to Proposition 36 probation. After defendants request, the court made the following comments: I am willing to have you tell me what you want, and I will look at the law and how it applies, but I dont believe that the amount of methamphetamine that he had was for personal use. [] And I heard the same trial you did. I heard the testimony of the witnesses, and if his obtaining Prop 36 is going to be based on my coming to the conclusion as a factual argument that he possessed this stuff for personal use, I think its going to be a very difficult argument on your part . . . because I heard the trial already, but I dont know the answer. You said you want to brief it. I am happy to look at the briefs. I am happy to look at everything else.

The trial court considered the parties briefs, denied defendants request, and made the following remarks: Yeah, [defendants trial counsel], let me start off by saying you may very well be right [that the United States Supreme Courts decision in Cunningham^[3]might conflict with the holding of Dove^[4]]. I believe that I am bound by the logic of the Dove case under the circumstances, and I think that there is reason to not make a finding that this matterthat in this matter [defendant] possessed the contraband for personal use, and I am going to decline to make that finding just as judgeI should say just as the judge did in the Riverside case of People versus Dove. [] And its for the appellate court. They will have a chance. Judge Richley [sic] wrote this opinion. She will have a chance to revisit her own opinion under the circumstances today and in light of the precedent that you cited and precedent may come out between now and the time this case is before her, and so I am going to deny Prop 36 . . . .

DISCUSSION

Defendant contends the court violated his Sixth Amendment rights to a jury trial and to proof beyond a reasonable doubt by finding that he did not transport the methamphetamine for personal usea fact that caused him to be ineligible for Proposition 36 probation.^[5] Defendant argues that this courts decision in Dove, which the trial court relied upon, is inconsistent with the holding in the recent case of Cunningham. We disagree with defendants contention.

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, is codified in Penal Code section 1210.1 and requires the trial court to grant probation with a drug treatment condition to any defendant convicted of a nonviolent drug possession offense. (Pen. Code, 1210.1, subd. (a).) A nonviolent drug possession offense is defined in part as transporting methamphetamine for personal use, but does not include the possession for sale, production, or manufacturing of any controlled substance . . . . (Pen. Code, 1210, subd. (a).)

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proven beyond a reasonable doubt. (Id. at p. 489.) Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional factual findings, there is a right to a jury trial and to proof beyond a reasonable doubt on the additional facts.

In Dove, this court determined that a trial courts finding that the defendant did not transport drugs for personal use did not implicate the defendants Sixth Amendment rights as contemplated in Apprendi because Penal Code section 1210.1 creates a sentencing reduction rather than an increase in the prescribed statutory maximum sentence. (Dove, supra, 124 Cal.App.4th at p. 9.) We reached this conclusion, in part, by relying on our Supreme Courts determination in In re Varnell (2003) 30 Cal.4th 1132, 1142, that [Penal Code] section 1210.1 reduces the potential punishment that a defendant may expect based upon his or her conviction(s). (Dove, at pp. 8-9.)

In Cunningham, the United States Supreme Court held that Californias determinate sentencing law violates a defendants rights to a jury trial and to proof beyond a reasonable doubt to the extent the law allows a judge to impose an upper term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 127 S.Ct. at pp. 860, 871.)

We conclude that the analysis of defendants contention has not changed due to the courts decision in Cunningham, because Cunningham did not address sentence reduction schemes. Furthermore, we are bound to follow our Supreme Courts determination in In re Varnell, supra,30 Cal.4th at page 1142, that Penal Code section 1210.1 reduces a defendants expected sentence. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, the trial court was within its authority in finding that defendants offense did not qualify as a nonviolent drug offense, i.e., that defendant did not possess the drugs for personal use. The trial court did not violate defendants Sixth Amendment rights.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

RICHLI

J.

GAUT

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] The jury was deadlocked as to count 1, possessing a controlled substance for sale (Health & Saf. Code, 11378), and the court dismissed the count.

^[2] Defendant admitted two prior convictions that resulted in a prison term (Pen. Code, 667.5, subd. (b)); however, the court struck one of the prior convictions.

^[3]Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).

^[4]People v. Dove (2004) 124 Cal.App.4th 1 (Dove).

^[5] We note that the trial court did not expressly find that defendant did not possess the drugs for personal use, but implicitly found that fact because the court sentenced defendant to state prison rather than granting him Proposition 36 probation. In Dove, we noted that the trial court chose not to explicitly find that the drugs the defendant transported were for personal use. (Dove, supra, 124 Cal.App.4th at pp. 7, 10-11.) We held that because the courts finding that the drugs were not for personal use was not required to be stated on the record, then we could imply the necessary finding. (Id. at pp. 10-11.) We then concluded that a prison sentence is not subject to reversal merely because the trial court failed to make an express finding of personal use. (Ibid.)