P. v. Ruiz

Filed 8/21/07 P. v. Ruiz CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendant James Randolph Ruiz was convicted after a jury trial of possession and transportation of methamphetamine. (Health & Saf. Code, 11377, subd. (a), 11379, subd. (a)) and misdemeanor possession of paraphernalia (Health & Saf. Code, 11364). The jury acquitted defendant of possession of methamphetamine for sale. After a bench trial, the trial court found defendant had two prior drug convictions (Health & Saf. Code, 11370.2, subd. (c)) and that defendant had served a prior prison term (Pen. Code, 667.5, subd. (b)).^[1] The trial court found defendant ineligible for Proposition 36 probation ( 1210.1) and sentenced him to an aggregate term of 10 years in state prison.

On appeal, defendant contends the trial courts denial of Proposition 36 probation violated the principles enunciated in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), because the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt. We affirm.

BACKGROUND

On February 23, 2005, police conducted a parole search of defendant and found a methamphetamine pipe, a digital scale, $730 in cash, and a plastic container containing approximately 22 grams of crystallized methamphetamine. Although defendant appeared nervous, he did not appear to be under the influence of methamphetamine at the time of the search. The methamphetamine found on defendants person had a street value of between $800 to $1,300.

Two law enforcement officers opined that the 22 grams of crystallized methamphetamine was possessed by defendant for sale. Law enforcement officers also testified that defendant was found in possession of 26 grams of methamphetamine in 1998 and 42.2 grams of methamphetamine in 2001. When defendant was found with the methamphetamine in 2001, he also had a police scanner and a surveillance camera monitoring the premises.

George Pence, a Yolo County Alcohol Drug Mental Health Specialist and former drug addict, evaluated defendant in June 2004 and found defendant was in need of immediate residential treatment. Defendant had used methamphetamine nearly every day for the previous month. Pence testified that methamphetamine is a social drug and it is common for an addict to share his/her methamphetamine with other users. A heavily addicted user may use up to a gram of methamphetamine a day if the user is unemployed and stays home all day. An employed user will use less because, otherwise, the drug use would be noticeable to coworkers.

Defendants employer testified that defendant worked with him 30 to 40 hours a week as a painter and assistant for home remodeling work. Defendant never appeared to be under the influence of methamphetamine while working for him.

The jury found defendant guilty of possession and transportation of methamphetamine and of misdemeanor possession of paraphernalia, but acquitted him of possession of methamphetamine for sale. The trial court found defendant had two prior drug convictions and had served a prior prison term.

George Pence provided further testimony at the sentencing hearing. He stated that if a person had 22 grams of methamphetamine and was not selling, it was more common that a person would be sharing his/her methamphetamine rather than consuming it alone. Pence further stated that when he was using methamphetamine, ounces were always shared between everyone.

Defendant testified that he had purchased an ounce of methamphetamine a week before the parole search for his personal use. He purchased it from a friend named Danny, whose last name he does not know for $750. Although defendant was aware that he could recover the initial cost of the methamphetamine by selling seven grams of it, he said he did not have time to sell methamphetamine. He claimed he uses a gram of methamphetamine or more a day.

The trial court found defendants testimony not credible and that the evidence showed he possessed the methamphetamine for other than personal use. Accordingly, the trial court found defendant ineligible for probation under Proposition 36 and sentenced defendant to an aggregate term of 10 years in state prison.

DISCUSSION

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, added section 1210.1 to the Penal Code, which requires the trial court to grant probation with a drug treatment condition to anyone convicted of a nonviolent drug possession offense unless disqualified by the provisions of section 1210.1, subdivision (b). Section 1210, subdivision (a), defines a 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.

Here, defendant was not disqualified from Proposition 36 probation by any of the provisions of section 1210.1, subdivision (b). Instead, the trial court found him ineligible because it found defendants possession and transportation of the 22 grams of methamphetamine was not for personal use.

Citing Apprendi and Blakely, defendant contends his sentence must reversed because the jury, not the court, [must] find that [defendant] possessed the drugs other than for personal use, and that it find that fact true beyond a reasonable doubt and not by a preponderance of the evidence. We disagree.

Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant. Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at p. 296.)

The leading California Supreme Court case holds that Proposition 36 effects a sentence reduction rather than the statutory maximum for the offense. (In re Varnell (2003) 30 Cal.4th 1132, 1142 (Varnell) [Nothing in section 1210.1 [Proposition 36] could have created an enhancement to petitioners sentence since, when it applies, section 1210.1 reduces the potential punishment, italics omitted]; People v. Dove (2004) 124 Cal.App.4th 1, 11 [[I]n enacting Proposition 36, the electorate understood incarceration to be the preexisting standard penalty; it intended probation and treatment to reduce the penalty that would otherwise apply.].) Thus, neither Apprendi nor Blakely prohibited the trial court from deciding, based on the preponderance of the evidence, whether defendants possession or transportation was for personal use for purposes of Proposition 36. (People v. Dove, supra, at p. 11.)

Defendant contends the line of California cases, including Varnell, supra, 30 Cal.4th 1132 and People v. Dove, supra, 124 Cal.App.4th 1, were wrongly decided because the maximum the trial court may impose without making such additional findings regarding personal use is probation. The corollary to this position is that a Proposition 36 determination is not the minimum in the range of punishments that may be imposed by the court but, rather, fixes the maximum punishment as probation unless there are facts which remove the case from Proposition 36 treatment.

We agree with Varnell, supra, at page 1136, that Proposition 36 is part of a sentencing scheme, applicable to all nonviolent drug possession offense[s], which establishes a term at the low end of the range of punishments. Moreover, we are bound by Varnell. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, the trial court is authorized to determine the facts which may remove an offense presumptively within Proposition 36 from its purview.

In a supplemental brief, defendant contends that the recent United States Supreme Court opinion in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), supports his position. Nothing in Cunningham, however, compels a different result.

In Cunningham, the United States Supreme Court held that under Blakely and other decisions, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments 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, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238(Black I) on this point, vacated in Black v. California (2007) U.S. ___ [167 L.Ed.2d 36].) Cunningham did not address the sentence reduction scheme of Proposition 36 or otherwise support defendants argument that Proposition 36 probation is the statutory maximum sentence. Indeed, Cunningham specifically identified the middle term specified in Californias statutes, . . . as the relevant statutory maximum. (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 876].)

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P.J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

^[1] Further undesignated statutory references are to the Penal Code.