P. v. Elliott
A jury found defendant not guilty of possession of cocaine base for sale (Health & Saf. Code, S 11351.5) but guilty of the lesser included offense of simple possession of cocaine base S 11350, subd. (a)), and being under the influence of a controlled substance ( s 11550). Defendant filed a motion for sentencing pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (Pen. Code, S 1210 et seq.) Although the jury did not find that the cocaine base was for sale, the trial court found that the cocaine base was for sale, and not for personal use. On that ground, the court ruled that defendant was ineligible for probation and treatment under Proposition 36, and instead sentenced her to four years in state prison.
On appeal, defendant contends that the trial court erred in denying her Proposition 36 probation, since she was eligible under the plain language of Penal Code section 1210.1, subdivision (a). The judgment is affirmed.
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