P. v. Lang
Filed 1/10/07 P. v. Lang CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY G. LANG, Defendant and Appellant. | D049592 (Super. Ct. No. RIF113549) |
APPEAL from a judgment of the Superior Court of Riverside County, Richard T. Fields, Judge. Affirmed.
Anthony G. Lang appeals a judgment entered following a jury verdict finding him guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). On appeal, Lang contends: (1) his federal constitutional right to due process of law was violated when the prosecution did not produce a police dispatch tape recording; (2) the trial court abused its discretion by admitting evidence of his prior acts of drug possession; and (3) the trial court erred by finding him ineligible for probation and drug treatment under Proposition 36 (Pen. Code, § 1210 et seq.).
FACTUAL AND PROCEDURAL BACKGROUND
On November 20, 2003, Jacqueline Sheffield, a paid police informant, met Lang in the garage of a house in which he was residing. Lang was using drugs and offered her some. Lang had hidden drugs inside the cassette tape portion of a " boom box" CD radio. Sheffield and Lang smoked crack cocaine together for about 45 minutes. Lang told her he needed to fix a flat tire on a car he had been driving, and she drove him to the parking lot of a grocery store where that car was parked. Lang brought his CD radio with the drugs inside. Sheffield parked her car next to a van in the parking lot, and Lang got out of the car carrying his CD radio. She told Lang he could use the spare tire from her car and that she had to telephone her mother. Lang began changing the van's tire, and Sheffield walked away and telephoned her mother using a pay telephone. She then telephoned Riverside Police Department Detective Joe Miera and told him she was with someone who had drugs. She said the drugs were in a radio on top of a van. Sheffield then returned to the van. Two Hispanic men she did not know were talking to Lang.
Riverside Police Detective Simons arrived at the parking lot before the other responding officers. He saw Lang holding a CD radio. Lang looked at the front of the CD radio and then placed it on top of the van. Simons also saw two Hispanic males standing near the van with Lang. Other officers arrived five to ten minutes later.
Officer Miera, who was en route to the scene, communicated with the officers observing Lang.[1] Miera and two other officers arrived at the parking lot and saw Lang, Sheffield, and two Hispanic males near a minivan. Lang was kneeling, working on the right, rear tire of the van. Miera spoke to him, but Lang ignored him.[2] Lang eventually stood up and Miera searched him, finding nothing. Miera then saw a CD radio on the roof of the van, with something stuffed inside its cassette portion. Miera removed a wad of plastic from the CD radio. It contained substances Miera recognized as illegal narcotics.
Miera asked who owned the CD radio. Lang denied he owned it and stated it belonged to " Jeffrey." The other three individuals denied owning the CD radio. Miera took Lang into custody and drove him around the area searching for the individual named Jeffrey. They were unable to find him.
Miera weighed, tested, and booked into evidence the substances found in the CD radio. One plastic baggie contained several pieces of a rock-like, white substance, another baggie contained a white crystal substance, and chewing gum foil contained a brownish powder. Subsequent laboratory testing showed the three packages found in the CD radio contained 1.04 grams of cocaine base, 2.61 grams of methamphetamine, and .31 grams of cocaine base.[3]
An information charged Lang with one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378) and one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The information also alleged Lang had served five prior prison terms (Pen. Code, § 667.5, subd. (b)). At trial, Miera testified that Lang possessed both the methamphetamine and cocaine for sale based on the quantity found and information he received from Sheffield. Sheffield testified she had purchased rock cocaine from Lang about three times during the month prior to his arrest. The prosecution also presented evidence of Lang's two prior acts of drug possession.
In his defense, Lang presented the testimony of his cousin, who lived next door to him. Lang frequently borrowed her " boom box" radio, which was not the one found at the time of Lang's arrest. She had never seen Lang with a boom box radio other than hers.
The jury found Lang not guilty of the two possession-for-sale offenses charged in the information, but found him guilty of the lesser included offenses of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). It also found true the allegations he had served five prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court denied Lang's request for probation and sentenced him to a prison term of seven years.[4]
Lang timely filed a notice of appeal.
DISCUSSION
I
Failure to Produce the Dispatch Tape
Lang contends the prosecution violated his federal constitutional right to due process of law by failing to produce the police dispatch tape recording of the police communications leading to his arrest (dispatch tape).[5]
A
On February 6, 2004, the trial court ordered the dispatch tape be turned over to the public defender's office. On February 25, the prosecutor requested (via electronic mail) that his investigators obtain copies of the dispatch tape. Apparently a few days later, the dispatch tape was destroyed by the Riverside Police Department pursuant to Government Code section 26202.6.[6]
At a hearing on August 27, Lang's counsel was informed of the dispatch tape's destruction. Lang's counsel informed the trial court that Lang had stated the dispatch tape was critical to his defense because it would support his Penal Code section 1538.5 motion to suppress by showing a lack of probable cause or to show " some infirmity of the testimony of the various witnesses."
The prosecutor noted he had the dispatch log for the incident. That log showed the incident number, the dispatch time, date, location of the incident, and probably an entry by a responding officer. The log stated: " 1315 hours, 11 seconds, Miera, Joseph . . . no more information. Location 3162 Chicago Avenue." The prosecutor argued that because the log showed nothing else, he did not know what value the dispatch tape would have been to Lang. The prosecutor argued he believed the dispatch tape " would only [have] bolster[ed] our case."
Lang's counsel argued that a sanction of either dismissal of the action or preclusion of prosecution witnesses should be imposed for the violation of Lang's due process rights. The trial court noted dismissal was a drastic remedy to be granted only in the most serious cases and Lang had not shown the missing evidence would have been sufficiently exculpatory to support dismissal or a similar sanction.
Lang's counsel stated that Lang told him the dispatch tape could show Sergeant Assuma was not at the scene of his (Lang's) arrest and therefore Assuma committed perjury by testifying to the contrary during the preliminary hearing. The prosecutor argued the dispatch tape could not have proven Assuma's absence from the arrest scene because he (Assuma) may not have chosen to record on dispatch any entry or other communication at that time. The trial court noted the absence of a communication by Assuma with the dispatcher would not prove " one way or the other" whether Assuma was at the scene of Lang's arrest. Furthermore, the court noted the tape's absence did not preclude Lang from raising at trial the issue of whether Assuma was present at the scene of the arrest. The court concluded:
" So we need to know what exculpatory-type evidence is going to be presented, and then we'll talk to or address the issue of whether there's going to be exclusion of any [prosecution] evidence by reason of the non[-]production of the tape. . . . [W]e need not address that now. It's just premature. So it's not put to rest. It's just put on the back burner until we know more."
Lang does not cite to the record showing he thereafter requested a ruling on his request for sanctions or otherwise raised the issue of sanctions.
" As articulated by the United States Supreme Court in Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], the prosecution has a sua sponte obligation, pursuant to the due process clause of the United States Constitution, to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant. (E.g., Kyles v. Whitley (1995) 514 U.S. 419 [115 S.Ct. 1555, 131 L.Ed.2d 490]; In re Ferguson (1971) 5 Cal.3d 525 [96 Cal.Rptr. 594, 487 P.2d 1234].) This constitutional duty is independent of, and to be differentiated from, the statutory duty of the prosecution to disclose information to the defense. ([Pen. Code,] § 1054; [citation].)" (People v. Bohannon (2000) 82 Cal.App.4th 798, 804.)
" [T]he suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady v. Maryland, supra, 373 U.S. at p. 87, italics added.) " Evidence is 'favorable' if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [Citation.]" (In re Sassounian (1995) 9 Cal.4th 535, 544.) " Such evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. [Citations.]" (Strickler v. Greene (1999) 527 U.S. 263, 280, italics added.) " There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Id. at pp. 281-282.) Strickler stated:
" [T]he term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence--that is, to any suppression of so-called 'Brady material'--although, strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." (Id. at p. 281, italics added.)
Alternatively stated, " [t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (Kyles v. Whitley, supra, 514 U.S. at p. 434; Strickler v. Greene, supra, at pp. 289-290.) The defendant must show " that the favorable [undisclosed] evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Kyles v. Whitley, supra, at p. 435, fn. omitted.)
C
Assuming arguendo the prosecution violated the trial court's order to produce the dispatch tape, Lang does not carry his appellate burden to show the prosecution's nondisclosure of the dispatch tape was " material," as that term is used in Brady and its progeny, and therefore prejudicial to him. Lang does not show the information contained in the destroyed dispatch tape would have been exculpatory or that it is reasonably probable production of the dispatch tape would have resulted in a different verdict. (People v. Bohannon, supra, 82 Cal.App.4th at pp. 804-805.) Rather, he only summarily argues:
" Had the district attorney acted promptly to obtain the tape, appellant would have had an adequate opportunity to impeach the credibility of the officers who claimed to have been at the scene. Because the prosecutor effectively suppressed this information which could have been material and favorable to appellant, reversal is required." (Italics added.)
In so arguing, Lang does not carry his appellate burden. First, he does not show the undisclosed dispatch tape was favorable to him (i.e., that it would, in fact, have been either exculpatory or impeaching evidence). It is speculative to presume the dispatch tape contained any information that would have either helped Lang's defense or hurt the prosecution's case. Based on the appellate record, there is nothing to support a reasonable inference that the dispatch tape, had it been disclosed, contained any information that would have impeached Assuma or any other officer (purportedly) involved in Lang's arrest. Therefore, Lang has not satisfied the first prong of the Brady test. (Strickler v. Greene, supra, 527 U.S. at pp. 281-282.)
Second, Lang does not show the dispatch tape was material under Brady's definition. Rather, he merely argues the dispatch tape could have been material. Furthermore, his conclusory argument that the dispatch tape was material is insufficient to persuade us that it is reasonably probable the jury would have reached a different verdict had it been disclosed. (Strickler v. Greene, supra, 527 U.S. at p. 281.) Alternatively stated, Lang has not shown " that the favorable [undisclosed] evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Kyles v. Whitley, supra, 514 U.S. at p. 435, fn. omitted.) In the absence of any showing by Lang that the dispatch tape contained, in fact, compelling impeachment or other evidence favorable to him that would have placed the entire case in a different light, we cannot conclude the undisclosed dispatch tape was material. Accordingly, Lang has not satisfied the third, and most important, prong of the Brady test. (Strickler v. Greene, supra, at pp. 281-282.) Therefore, although the prosecution's dilatory action in requesting the dispatch tape precluded Lang from reviewing, and possibly using that tape in his defense or for impeachment purposes, he has not carried his appellate burden to show his federal constitutional due process or discovery rights were violated.
II
Admission of Evidence on Lang's Prior Acts of Drug Possession
Lang contends the trial court abused its discretion by admitting, over his objection, evidence of his prior acts of drug possession. He argues his prior acts of drug possession were insufficiently similar to the instant incident. He also argues Evidence Code section 352 precluded admission of evidence on those prior acts.
A
Before trial, the prosecution moved for admission under Evidence Code section 1101, subdivision (b) of evidence of Lang's two prior acts of drug possession. The prosecution proffered that an officer's testimony would show that on April 22, 1992, Lang was arrested for possession of rock cocaine for sale. At that time, Lang possessed 6.9 grams of rock cocaine and $250 in cash. The prosecution also proffered that another officer's testimony would show that on June 29, 2002, Lang was found with 0.2 grams of methamphetamine hidden inside his mouth. The prosecution argued that both prior incidents were relevant to prove Lang's knowledge, intent, and absence of mistake or accident in the instant case. The prosecution further argued admission of that evidence was highly probative and would not be unduly prejudicial under Evidence Code section 352. Lang opposed the motion, arguing his 1992 arrest was too remote in time. He apparently did not expressly argue evidence regarding his 2002 conduct should be excluded.
The trial court granted the prosecution's motion to admit evidence of those two prior incidents, noting they showed Lang's knowledge of the nature of the substances involved in this case (i.e., rock cocaine and methamphetamine), as well as Lang's intent and absence of mistake. The court further stated that the proffered evidence was not unduly prejudicial.
At trial, Riverside Police Officer Michael O'Boyle testified that on June 29, 2002, he rode his patrol bicycle with three other officers into an apartment complex courtyard and saw Lang walk quickly into an apartment. O'Boyle spoke with the man who lived in that apartment. The man did not know Lang and wanted him to leave. In Lang's mouth, O'Boyle found 0.2 grams of methamphetamine contained in a clear plastic baggie. O'Boyle testified he believed Lang possessed the methamphetamine for his personal use.
Riverside Police Officer Roy Lineberry testified that on April 22, 1992, he responded in his marked patrol car to a radio dispatch regarding a Cadillac. Lineberry located the car and pursued it for some distance while objects were thrown from its front passenger's side window. One of the objects thrown out was a brown purse. Lang was the car's driver and there were two women passengers. One of the women was sitting in the right front seat and the other was sitting in the right rear seat. Lineberry retrieved the purse and found inside it a plastic bag containing 6.9 grams of rock cocaine. Lineberry also found $250 in cash on Lang.
Evidence Code section 1101, subdivision (a) states that character evidence is inadmissible unless otherwise provided:
" Except as provided in this section and in [Evidence Code] Sections 1102, 1103, 1108 and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence or specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
However, Evidence Code section 1101, subdivision (b) provides an exception to that general rule of exclusion, stating:
" Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Italics added.)
Evidence Code section 1101, subdivision (b) clarifies that the general rule of exclusion of character evidence " does not prohibit admission of evidence of [prior acts] when such evidence is relevant to establish some fact other than the [defendant's] character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted (Ewoldt).)
In Ewoldt, the California Supreme Court discussed the rules on admissibility of evidence on a defendant's prior acts:
" Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of [prior acts], to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of [prior acts] when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.)
The court noted that evidence on prior acts " is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense." (Id. at p. 394, fn. 2.) Evidence of a defendant's prior acts is relevant to show the defendant's intent where the prior acts and the charged offense are " sufficiently similar" to support the inference that the defendant probably harbored the same intent in each instance. (Id. at pp. 401-402; People v. Robbins (1988) 45 Cal.3d 867, 879, superseded by statute on another ground as noted in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) " The least degree of similarity (between the [prior acts] and the charged offense) is required in order to prove intent. [Citation.]" (Ewoldt, at p. 402.)[7] Ewoldt noted that the recurrence of similar results tends to disprove accident, inadvertence, self-defense, good faith or other innocent mental state, and tends to prove the presence of criminal intent. (Ewoldt, supra, 7 Cal.4th at p. 402.)
Although evidence of prior acts may be admissible under Evidence Code section 1101, subdivision (b) to prove criminal intent, knowledge, or lack of mistake or accident, such evidence may nevertheless be inadmissible under Evidence Code section 352[8] if it is unduly prejudicial. A determination of inadmissibility of evidence under Evidence Code section 352 requires the balancing of the probative value of the evidence against its potential prejudicial effect. (Ewoldt, supra, 7 Cal.4th at pp. 404-405.)
C
Considering the evidence and making all reasonable inferences favorably to support the judgment, we conclude the trial court did not abuse its discretion by admitting evidence on Lang's two prior acts of drug possession. Regarding the 1992 incident, the facts were sufficiently similar to those of the instant incident to support a reasonable inference that Lang had the same criminal intent during both incidents and knew the nature of the substance involved. The trial court and jury could reasonably infer from the circumstances of the 1992 incident that Lang, as the driver of a car evading a marked patrol car, knew the nature of the substance involved (i.e., rock cocaine) thrown out of the car's window by his passenger.[9] Based on the amount of rock cocaine involved in the 1992 incident (i.e., 6.9 grams), they could also reasonably infer Lang possessed that cocaine for sale and therefore had the specific intent to sell it. In the instant case, Lang was again found in possession of rock cocaine. Those two incidents were sufficiently similar to support admission of the 1992 prior act to prove " fact[s] other than [Lang's] character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393.) Admission of the evidence regarding the 1992 incident tended to prove Lang knew the nature of the substance involved (i.e., rock cocaine). Therefore, evidence of Lang's 1992 prior act was admissible under Evidence Code section 1101, subdivision (b) to prove his knowledge of the nature of the substance found in the CD radio, tending to prove he committed the offense of possession of cocaine. Furthermore, because Lang was charged with possession of cocaine for sale, evidence on his 1992 prior act also tended to prove he also possessed the instant cocaine with the requisite intent to sell it.[10] Finally, evidence on Lang's 1992 prior act tended to prove he did not mistakenly or accidentally possess the instant cocaine. Accordingly, we conclude Lang's 1992 act was sufficiently similar to the instant incident under Ewoldt and was relevant under Evidence Code section 1101, subdivision (b) to prove some fact other than Lang's character or disposition (e.g., to prove Lang's intent, knowledge, and/or absence of mistake or accident).
Furthermore, we conclude the trial court did not abuse its discretion in concluding admission of evidence on Lang's 1992 act would not be unduly prejudicial under Evidence Code section 352. Lang's 1992 prior act was substantially probative regarding his intent, knowledge, and absence of mistake or accident. The trial court could reasonably conclude that probative value was not " substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) Furthermore, the trial court gave a limiting instruction (i.e., CALJIC No. 2.50) that minimized, if not precluded, any potential undue prejudice from admission of that evidence.[11]
Similarly, the 2002 incident was sufficiently similar to the instant incident to support a reasonable inference that Lang knew the nature of the substance involved (i.e., methamphetamine). The trial court and jury could reasonably infer that Lang, by hiding a plastic baggie containing methamphetamine in his mouth in 2002, knew the nature of the substance he hid there. In the instant incident, Lang hid the methamphetamine in a plastic baggie inside a CD radio. Both instances involved Lang's hiding methamphetamine. Therefore, evidence of Lang's 2002 prior act tended to prove Lang knew the nature of one of the substances involved in the instant incident (i.e., methamphetamine). Furthermore, that evidence also tended to disprove Lang possessed the instant methamphetamine by mistake or accident. Accordingly, we conclude Lang's 2002 prior act was sufficiently similar to the instant incident under Ewoldt and was relevant under Evidence Code section 1101, subdivision (b) to prove some fact other than Lang's character or disposition (e.g., to prove Lang's knowledge and/or absence of mistake or accident).
We conclude the trial court did not abuse its discretion in concluding admission of evidence of Lang's 2002 act would not be unduly prejudicial under Evidence Code section 352. Lang's 2002 prior act was substantially probative regarding his knowledge and absence of mistake or accident. The trial court could reasonably conclude that probative value was not " substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) Furthermore, the trial court gave a limiting instruction (i.e., CALJIC No. 2.50) that minimized, if not precluded, any potential undue prejudice from admission of that evidence.
Because the trial court reasonably concluded evidence of Lang's prior 1992 and 2002 acts was relevant to prove facts other than his character or disposition and was not unduly prejudicial, the trial court did not abuse its discretion by admitting evidence of those prior acts.
III
Lang's Ineligibility for Proposition 36 Treatment
Lang contends the trial court erred by finding him ineligible for probation and drug treatment under Proposition 36 (Pen. Code, § 1210 et seq.).
A
At Lang's sentencing, the prosecution filed a memorandum requesting the trial court find Lang ineligible for probation and drug treatment under Proposition 36. The prosecution argued Lang had not met his burden to show he possessed the drugs " for personal use," as required by Penal Code section 1210 for Proposition 36 eligibility.
In sentencing Lang, the trial court initially addressed the issue of his eligibility for Proposition 36 treatment. Citing People v. Dove (2004) 124 Cal.App.4th 1, the court noted Lang had the burden to prove to the court by a preponderance of the evidence that he possessed the drugs " for personal use." The court then noted Lang's defense at trial was that he never possessed the drugs, not that he possessed them only for personal use. The court stated: " [Lang] has not introduced any evidence in that regard." (Italics added.) It then concluded Lang had not met his burden to show he possessed the methamphetamine and cocaine for personal use. The court noted that based on Miera's testimony (which it found credible and was unrebutted), the prosecution had clearly shown by a preponderance of the evidence that Lang possessed the drugs for sale. The trial court stated:
" So it does not appear to the Court that it was possessed for personal use, but rather that it was possessed for sale. It has been established by a preponderance of the evidence, and that applies both with respect to the methamphetamine and with respect to the cocaine base.
" And it appears to the Court that therefore, [Lang] is not eligible for Prop. 36 treatment under [Penal Code section] 1210.1 et seq."
Lang argued he should be given probation under Proposition 36 because Dove was wrongly decided and the trial court's finding that the drugs were possessed for sale was contrary to the jury's verdict finding him not guilty of possession for sale.
The trial court was unpersuaded by that argument, denied Lang probation, and sentenced him to a prison term of seven years.
" Following the enactment of Proposition 36, the 'Substance Abuse and Crime Prevention Act of 2000,' which took effect July 1, 2001, a defendant who has been convicted of a 'nonviolent drug possession offense' must receive probation and diversion into a drug treatment program, and may not be sentenced to incarceration as an additional term of probation. (Pen. Code, § 1210.1, subd. (a).)" (People v. Canty (2004) 32 Cal.4th 1266, 1272-1273, fn. omitted & italics added.) As Canty noted, " Proposition 36 is codified in Penal Code sections 1210, 1210.1, and 3063.1 and Health and Safety Code section 11999.4 et seq. [Citation.]" (Canty, at p. 1273, fn. 1.)
Penal Code section 1210.1, subdivision (a) provides:
" Notwithstanding any other provision of law, and except as provided in subdivision (b), 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. . . ." (Italics added.)
Penal Code section 1210, subdivision (a) provides:
" The term '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, production, or manufacturing of any controlled substance . . . ." (Italics added.)
In People v. Barasa (2002) 103 Cal.App.4th 287 (Barasa), we considered whether a trial court erred by denying a defendant Proposition 36 treatment based on its finding that the defendant's drug transportation offense was not " for personal use" within the meaning of Penal Code section 1210. (Barasa, at pp. 290, 293-296.) First, we addressed the argument that the trial court's finding violated the principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466. Quoting People v. Sengpadychith (2001) 26 Cal.4th 316, at page 326, we stated: " As our Supreme Court recently noted, 'This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant's prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the " prescribed statutory maximum" punishment for that crime. [Citation.]' [Citation.]" (Barasa, at p. 294, fn. omitted.) Because Proposition 36 is not a sentencing provision that could increase " the prescribed statutory maximum punishment" for an offense, we concluded the trial court's finding of fact that the defendant was ineligible for Proposition 36 probation and drug treatment did not violate Apprendi. (Barasa, at pp. 294-295.) Second, we addressed the burden of proof regarding whether a drug transportation offense was " for personal use" within the meaning of Proposition 36. (Id. at pp. 295-296.) We stated:
" [W]here transportation is alleged and proven, the central and dispositive question is whether Barasa or the People had the burden on the question of whether the drugs transported were for personal use. Barasa argues the People must prove the negative; that is, the drugs transported were transported for commercial rather than personal usage. We disagree, as the law is clearly settled to the contrary . . . ." (Barasa, at p. 296.)
Accordingly, we affirmed the judgment. (Id. at p. 297.)
In People v. Glasper (2003) 113 Cal.App.4th 1104 (Glasper), the Sixth District Court of Appeal rejected the appellants' contention that " the jury's decision to acquit them of possession for sale and to find them guilty of the lesser included offense of possession precluded the trial court from making a factual determination that there was evidence the cocaine base found outside the Nissan was possessed for purposes other than personal use." (Id. at pp. 1112-1113, 1116.)[12] Glasper stated: " [T]he trial court correctly determined that it had 'the inherent authority' to consider the trial testimony in determining a defendant's eligibility for Proposition 36." (Glasper, supra, 113 Cal.App.4th at p. 1113.) It further stated:
" [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." (Id. at p. 1114, italics added.)
Glasper rejected the argument that the trial court's finding of Proposition 36 ineligibility violated Apprendi, adopting our reasoning in and extensively quoting Barasa. (Glasper, at pp. 1115-1116.) Accordingly, Glasper upheld the trial court's denial of the motions for Proposition 36 treatment. (Id. at p. 1116.)
In People v. Dove, supra, 124 Cal.App.4th 1, Division Two of the Fourth District Court of Appeal cited both Barasa and Glasper in holding the trial court properly denied Proposition 36 treatment for a defendant found guilty of both transportation and simple possession, but not guilty of possession for sale. (Dove, at pp. 3-4, 8-11.) Dove concluded: " [A] factual finding that a defendant did not possess or transport a controlled substance for personal use, for purposes of Proposition 36 sentencing, can be made by the trial court under a preponderance of the evidence standard . . . ." (Id. at p. 4.) Dove rejected the argument that the trial court's finding of Proposition 36 ineligibility violated Apprendi. (Dove, at pp. 8-9.) In so doing, Dove reasoned in part that Proposition 36 treatment is not a discretionary sentencing choice for an eligible defendant, but rather is mandatory unless the defendant is otherwise ineligible. (Id. at p. 10.) However, " when a defendant is ineligible, a prison sentence is equally mandatory." (Ibid.) Dove also stated:
" Barasa [held] that the defendant has the burden of proving that the possession or transportation was for personal use. [Citation.] Also, . . . the trial court's finding that the possession or transportation was not for personal use need not be stated on the record. If the trial court imposes a prison sentence, we will imply the necessary finding. Moreover, we will sustain that implied finding as long as it is supported by substantial evidence. [Citations.] Thus, unless the evidence shows personal use as a matter of law, a prison sentence is not subject to reversal merely because the trial court failed to make an express finding of personal use." (Dove, at pp. 10-11, italics added.)
Finally (and possibly most importantly for the instant case), Dove stated:
" [T]he 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. . . . [T]he trial court was free to redetermine the personal use issue based on the preponderance of the evidence. [Citations.]" (Dove, at p. 11, italics added.)
Accordingly, Dove affirmed the judgment. (Id. at p. 12.)
C
Lang argues he is entitled to Proposition 36 probation and drug treatment as a matter of law based on the jury's verdict acquitting him of possession for sale and finding him guilty only of simple possession. He argues the trial court erred by " redetermining" the facts found by the jury.
The jury's verdict finding Lang guilty of only the offenses of possession of methamphetamine and possession of cocaine (and not guilty of possession for sale) is not equivalent to a finding by the jury that he possessed those drugs " for personal use" within the meaning of Penal Code section 1210. Possession of drugs may or may not be " for personal use" of their possessor. For example, a defendant may possess drugs (e.g., a " date rape" drug) without possessing those drugs for his or her personal use, but rather for use (or consumption) by another person (whether intentionally or as an unknowing victim). Therefore, a defendant can be convicted of simple drug possession without possessing those drugs " for personal use" within the meaning of Proposition 36. Because Proposition 36 was intended to grant probation and drug treatment to only those defendants who are drug addicts or have other personal drug usage problems, a defendant convicted of simple drug possession is not entitled to Proposition 36 treatment absent an additional finding that his or her drug possession was " for personal use" within the meaning of Penal Code section 1210. Therefore, the jury verdict finding Lang guilty of simple drug possession did not equate with a finding he necessarily possessed those drugs " for personal use" within the meaning of Penal Code section 1210. (People v. Dove, supra, 124 Cal.App.4th at p. 11.) Furthermore, the jury's verdict acquitting Lang of possession for sale did not equate with a finding he necessarily possessed those drugs " for personal use." On the contrary, Lang's acquittal by the jury on the charge of possession for sale merely meant it found the prosecution did not prove beyond a reasonable doubt he possessed those drugs for sale. (Ibid.) It cannot reasonably be inferred from his acquittal on the charge of possession for sale that he necessarily possessed the drugs " for his personal use" within the meaning of Penal Code section 1210.
Because the jury's verdict did not decide the question of whether Lang's drug possession was " for personal use" within the meaning of Penal Code section 1210, the trial court properly addressed that issue and found, by a preponderance of the evidence, Lang's drug possession was not " for personal use." (People v. Dove, supra, 124 Cal.App.4th at pp. 10-11.) The trial court did not " redetermine" the jury's finding on that issue, because the jury never made a finding on the issue of whether his possession was for personal use.[13] Rather, the trial court properly considered the evidence in the record on the issue of whether Lang possessed the drugs " for personal use." (People v. Dove, supra, 124 Cal.App.4th at pp. 10-11.) As the trial court noted, Lang did not present any evidence, whether at trial or at sentencing, showing his possession of methamphetamine and cocaine was for his personal use. Furthermore, Miera testified at trial that, based on the amount of drugs Lang possessed, it was his opinion that Lang possessed those drugs for sale. Accordingly, there is substantial evidence to support the trial court's finding that Lang did not possess the methamphetamine and cocaine " for personal use," but rather for the purpose of sale. Because there is substantial evidence to support that finding, it is not within our appellate authority to independently determine he is, as a matter of fact and law, eligible for Proposition 36 treatment. (Ibid.)
We are not persuaded by Lang's assertion that Dove, and presumably Barasa and Glasper, were wrongly decided. On the contrary, we adopt the reasoning in those cases, including their conclusions that Apprendi does not require a jury finding beyond a reasonable doubt on the question of whether a defendant's drug possession or transportation is " for personal use" within the meaning of Penal Code section 1210, but rather a trial court may decide that question by a preponderance of the evidence. Furthermore, those cases are not inapposite to his case because they involved drug transportation rather than drug possession offenses. Penal Code section 1210, subdivision (a) expressly defines a " nonviolent drug possession offense" as " the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance." (Italics added.) There is no logical reason to conclude that to establish Proposition 36 eligibility a defendant is required to show his or her transportation of drugs was " for personal use," but is not required to show his or her possession of drugs was " for personal use." [14]
Accordingly, we conclude the trial court properly found Lang ineligible for Proposition 36 treatment.
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
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[1] Apparently none of those conversations were recorded.
[2] Miera was wearing department-issued apparel with the word " police" printed on the front and back.
[3] No fingerprints were found on the CD radio. Fingerprints found on a CD inside the radio did not match Lang's fingerprints.
[4] The court imposed the middle two-year term for his possession-of-methamphetamine offense, a concurrent middle two-year term for his possession-of-cocaine offense, and five consecutive one-year enhancements for his prior prison terms.
[5] To the extent Lang argues the prosecution also violated his state statutory discovery rights (e.g, under Pen. Code, § 1054 et seq.) or state constitutional due process rights, he has waived those arguments on appeal by not raising or substantively discussing those issues in his appellate briefs. (People v. Stanley (1995) 10 Cal.4th 764, 793; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) Furthermore, assuming arguendo Lang correctly argues the prosecution violated the trial court's disclosure order and the police department violated Government Code section 26202.6, he does not present any substantive discussion showing those violations require reversal of his convictions. By not showing it is reasonably probable he would have obtained a more favorable verdict absent those violations, Lang has not carried his burden on appeal to show those violations (and any trial court rulings regarding sanctions or otherwise) were prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
[6] Government Code section 26202.6 generally authorizes a police or other department to destroy routine recordings of telephone and radio communications 100 days after those recordings are made, provided such destruction has been approved by the legislative body and the agency's attorney. However, that statute provides an exception to its authorization: " In the event that the recordings are evidence in any claim filed or any pending litigation, they shall be preserved until pending litigation is resolved." (Gov. Code, § 26202.6.) For purposes of this opinion, we assume the destroyed dispatch tape was evidence in Lang's pending criminal action, requiring its preservation until that pending litigation was resolved.
[7] Greater degrees of similarity are required to show common plan or design and identity. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
[8] Evidence Code section 352 states in part: " The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ."
[9] The fact the 6.9 grams of rock cocaine was contained in a woman's purse thrown by a woman in the front passenger's seat does not necessarily show Lang did not have knowledge of the nature of that substance or possessed it. Rather, because Lang's car was evading the marked patrol car, it could be reasonably inferred he knew the purse in the car contained rock cocaine.
[10] Although the jury found Lang not guilty on that greater charge (finding him guilty only of the lesser included offense of possession of cocaine), the evidence on Lang's 1992 prior act was nevertheless admissible as tending to prove Lang's intent in possessing the instant cocaine.
[11] The trial court instructed with CALJIC No. 2.50: " Evidence has been introduced for the purpose of showing that the defendant committed crimes other than [those] for which he is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] The existence of the intent which is a necessary element of the crime charged; [¶] The defendant had knowledge of the nature of things found in his possession; [¶] The defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged[.] [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose." (Italics added.)
[12] In Glasper, the three appellants raising the Proposition 36 issue were all convicted of transportation and two of the three were also convicted of simple possession. (Glasper, supra, 113 Cal.App.4th at p. 1107.)
[13] We reject Lang's assertion the trial court wrongly believed it had discretion whether to apply Proposition 36. The record supports the inference the trial court was aware that Proposition 36 treatment was mandatory for eligible defendants. However, because the question of whether Lang was " eligible" for Proposition 36 treatment was not decided by the jury's verdict, the trial court properly considered evidence on, and decided, that question. (People v. Dove, supra, 124 Cal.App.4th at pp. 10-11.)
[14] For purposes of Proposition 36 eligibility, a jury verdict finding a defendant guilty of transportation is not more ambiguous than a jury verdict finding a defendant guilty of possession. Neither verdict decides whether the defendant transported or possessed the drugs for personal use within the meaning of Penal Code section 1210.
