Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA066416, Mark S. Arnold, Judge.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Ana R. Duarte and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Calvin McPherson appeals his sentence on his conviction on one count of transportation of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11379, subdivision (a). On appeal he claims the trial court erred in failing to sentence him pursuant to Penal Code section 1210.1 (“Proposition 36”). Specifically, he claims the trial court abused its discretion in denying his request for a special jury finding on whether his transportation was for “personal use” under Penal Code section 1210. Appellant argues a jury finding that his transport of methamphetamine was for “personal use” would have established his eligibility for Proposition 36 treatment. Appellant further claims given the evidence presented at trial the court should have found him eligible for Proposition 36 treatment; he argues that the prosecutor should be required to prove beyond a reasonable doubt that appellant’s transportation was for something other than personal use and failing to do that, he was entitled to the finding of “personal use.” Furthermore appellant asserts that case law shouldering him with the burden of proof violates his federal constitutional rights to due process. As we shall explain, the trial court, not the jury, properly determines by the preponderance of the evidence whether under Proposition 36 a defendant’s drug possession or transportation was for “personal use.” The court is not legally required to submit the matter to the jury, nor would the court be bound by any finding of the jury as to the issue. Consequently, the court did not abuse its discretion in refusing a request for a special jury verdict on personal use. In addition, appellant has waived his federal constitutional due process claim by failing to assert it below. But even if he had preserved it, we would conclude it lacks merit. The due process clause does not require the prosecutor plead or prove beyond a reasonable doubt a sentencing factor which effectively serves to reduce the defendant’s punishment; thus allocating the burden of proof to the defendant and assessing the proof under the preponderance of the evidence does not amount to a violation of appellant’s due process rights. Accordingly we affirm.
FACTUAL AND PROCEDURAL HISTORY
In the fall of 2006, two Torrance police officers conducted a traffic stop of appellant’s car because he had a broken taillight. When the officers questioned appellant he told them his driver’s license had been suspended. They asked him to step out of the car and he complied.
One of the officers asked appellant whether he had anything illegal in the car and he stated that he had “speed” in the glove compartment and a pipe in the driver’s side door panel.
The officer searched the glove box and passenger compartment of the car and found a plastic baggie of a crystalline substance resembling methamphetamine. The officer also found 21 plastic baggies in the car; nine of them had been used and showed traces of a substance resembling methamphetamine and twelve of the baggies were unused. In addition, five used methamphetamine pipes were found in the car.
The substance was later analyzed and determined to be 3.13 grams of methamphetamine.
Appellant was advised and waived his Miranda rights and spoke with the officers. According to the officers, appellant stated that he had paid $160 for the bag of methamphetamine, which he referred to as an “eight ball.” The officer said to appellant: “That’s a lot of methamphetamine to use. Do you sell?” According to the officer, appellant replied that he used three-fourths of it and would sell the rest. He told the officers that selling a quarter of it covered the cost of his own use. The officer then asked if he had any regular customers, to which appellant stated he did not, that he “just sells to a couple of girls.” He told the officers that to meet women he would supply them with the drugs.
Appellant was arrested and charged with one count of transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) (Count 1) and possession of a controlled substance for sale, in violation of Health and Safety Code section 11378 (Count 2). Appellant pled not guilty. At the beginning of the trial, appellant “stipulated” in front of the jury that he was guilty of Count 1 (transportation of methamphetamine).
During the trial in addition to the testimony of the officers, the prosecutor presented a narcotics expert who opined (based on a hypothetical resembling the facts of the case) that the methamphetamine was possessed for the purpose of sale. His opinion was based on the quantity possessed, the number of pipes and the unused baggies.
Appellant testified in his own behalf. He told the jury he had been using methamphetamine for 15 years and was an addict. He said he kept the drugs and pipes in his car to conceal them from his wife and admitted that he periodically shared his drugs with women, but never sold it or offered it in exchange for sexual favors. Appellant testified that the drugs found in his car on the day of his arrest were for personal use; he claimed he could use an eight ball in about a week and said that he kept the used baggies because they contained drug remnants he could use when he could not obtain more drugs. Appellant specifically denied telling the officers that he used some of the drugs and sold the rest to pay for his habit. Appellant stated that he told the officers he did not deal drugs. He said that one of the officers had proposed to him the idea of using three-quarters of the drugs and selling the rest, to which appellant replied: “Yeah, that might work.” Appellant testified that his acknowledgement of the idea did not, however, constitute a concession that he followed that practice.
Appellant also presented evidence from a former methamphetamine user and drug abuse counselor. Based on her experience she opined appellant had possessed the drugs for personal use, not for sale. She testified an addict could use an “eight ball” in a day and that addicts often keep numerous used pipes and baggies because they contain usable drug residue. She said the idea of using three-quarters and selling the rest was not cost effective and would make no sense for an addict.
After two days of jury deliberation, the jury indicated it had reached a verdict on Count 1, but was deadlocked on Count 2 (8 in favor of acquittal and 4 in favor of guilt). The court indicated that it would grant a mistrial on Count 2. The court then allowed appellant to make a record on appellant’s request for the jury to make a finding as to Count 1, i.e., whether or not they believed the drugs were transported for personal use or some other purpose. Appellant argued that a jury finding on the issue was required under Cunningham v. California (2007)549 U.S. 270 [127 S.Ct. 856] because it determined his eligibility under Proposition 36. The trial court disagreed, concluding that Cunningham did not apply and that the defense had the burden of proving appellant transported the drugs for personal use to be eligible for treatment under Proposition 36.
Thereafter the jury found appellant guilty of Count 1. At the sentencing hearing, the court dismissed Count 2. The court also declined to find that the drugs were transported for the purpose of personal use, and thus denied appellant’s request to be sentenced under Proposition 36. Imposition of sentence was suspended and appellant was placed on formal probation for a period of 3 years and ordered to serve 270 days in the county jail, with two days of credit for time served. He was assessed various statutory fines which were stayed pending his successful completion of probation.
This appeal followed.
DISCUSSION
I. The Trial Court Did Not Err in Denying Appellant’s Request for a Special Jury Verdict or Finding on Whether He Transported the Drugs for Personal Use.
In the General Election held November 7, 2000, the California voters passed Proposition 36, also known as the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, § 1210). Proposition 36, as described by the original ballot measure summary prepared by the Attorney General, “[r]equires probation and drug treatment program, not incarceration, for conviction for possession, use, transportation for personal use or being under [the] influence of controlled substances and similar parole violations, not including sale or manufacture.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) Summary of Prop. 36, p. 22.) As provided in the Historical and Statutory Notes, the purpose and intent of the Act is: “(a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [¶] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration – and reincarceration – of nonviolent drug users who would be better served by community-based treatment; and [¶] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies.” (See Historical Notes and Statutory Notes, 50D West’s Ann. Pen. Code (2004 ed.) foll. § 1210, p. 640.)
“When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors . . . . [Citation.] Placement of eligible defendants in Proposition 36 programs is not a discretionary sentencing choice made by the trial judge . . . .” (People v. Esparza (2003) 107 Cal.App.4th 691, 699.) Nonetheless, participation in the program is not granted automatically.
As enacted, Penal Code section 1210.1, subdivision (a) provides in relevant part: “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. . . . A court may not impose incarceration as an additional condition of probation.” (Pen. Code, § 1210.1, subd. (a).) As a threshold matter, eligibility for Proposition 36 treatment depends on the nature of the conviction, specifically it extends only to those defendants convicted of “nonviolent” drug offenses. Section 1210 defines which drug offenses are nonviolent; it 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 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. The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8.” (§ 1210. subd. (a).) (Italics added.)
All further statutory references are to the Penal Code unless otherwise indicated.
Section 1210.1 also contains statutory “exceptions to eligibility for otherwise eligible defendants” set forth in section 1210.1, subdivision (b) “which can be summarized as: 1) conviction of prior strike offenses within five years; 2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; 3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof of unamenability to drug treatment. (§ 1210.1, subd. (b).)” (People v. Esparza, supra, 107 Cal.App.4th at p. 696.)
There is no offense entitled “transportation of a controlled substance for personal use,” nor is “personal use,” an element of any statutory offense. (See People v. Glasper (2003) 113 Cal.App.4th 1104, 1115 [concluding nothing in Proposition 36 created a new crime of transportation for personal use].) Here appellant was convicted of a drug offense, specifically, transportation of a controlled substance under Health and Safety Code section 11379. A conviction for transportation of a controlled substance in violation of Health and Safety Code section 11379 does not require proof of a defendant’s purpose for possession; it requires proof that the defendant transported a controlled substance and that the defendant knew of its presence and nature as a controlled substance; “personal use” is not an element of this offense. Thus, the jury’s guilty verdict did not include a finding that the defendant possessed the controlled substance for personal use. Consequently, appellant’s conviction under Health and Safety Code section 11379 did not automatically determine appellant’s eligibility under Proposition 36.
Likewise, the fact the jury did not reach a verdict on Count 2, possession for sale of a controlled substance in violation of Health and Safety Code section 11351, does not constitute an implied finding that he possessed the controlled substance for personal use. It merely meant that the trier of fact found that there was not evidence proving beyond a reasonable doubt that appellant possessed the methamphetamine for sale. (See People v. Dove (2004) 124 Cal.App.4th 1, 10 [jury’s “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.”]; see People v. Glasper, supra, 113 Cal.App.4th at p. 1113.)
The defendants in Glasper and Dove were charged with transportation of cocaine base and with possession of cocaine base for sale. The juries in both cases convicted the defendants of transportation and simple possession and acquitted them of possession for sale. The trial courts in both cases found that the transportation was not for personal use and so denied probation. (People v. Glasper, supra, 113 Cal.App.4th at pp. 1107-1108; People v. Dove, supra, 124 Cal.App.4th at pp. 3-4.)
As appellant rightly acknowledges, the determination of whether appellant transported the drugs for “personal use” required a separate finding. The question presented on this appeal is how such a determination is made.
Respondent contends that “personal use” is a sentencing factor determined by the trial court by a preponderance of the evidence. Respondent is correct.
Federal constitutional law requires any fact that increases the penalty for a crime beyond the prescribed statutory maximum for the crime must be submitted to a jury and proved beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Cunningham v. California (2007)549 U.S. 270.) But a sentencing factor that effects a sentencing reduction does not require a jury determination under the reasonable doubt standard. (Ibid.)
A finding that a defendant transported (or possessed) a controlled substance for personal use effectively lightens the punishment for the crime that the defendant would otherwise receive in the absence of Proposition 36. (See People v. Varnell (2003) 30 Cal.4th 1132, 1142 [“when it applies, section 1210.1 reduces the potential punishment”; Apprendi not applicable to sentencing issues under Proposition 36] People v. Barasa (2002) 103 Cal.App.4th 287, 294.) The “personal use” requirement of section 1210 is thus a sentencing factor when a defendant is convicted of transportation of a controlled substance in violation of Health and Safety Code section 11379 and is otherwise eligible for probation under section 1201.1. It is well established that existence of this sentencing factor is determined by the trial court by a preponderance of the evidence. (See People v. Varnell, supra, 30 Cal.4th at pp. 1141-1144; People v. Barasa, supra, 103 Cal.App.4th at pp. 295-296; People v. Glasper, supra, 113 Cal.App.4th at p. 1115; People v. Dove, supra, 124 Cal.App.4th at pp. 9-11.)
Appellant acknowledges these authorities; on appeal he does not claim the court was legally required to submit the personal use issue to the jury. Instead, he argues the court should have granted his request because he timely asked for a special jury finding on the personal use issue and because submitting the matter to the jury would not have interfered with the jury’s deliberative process or duties. (People v. Davis (1995) 10 Cal.4th 463, 511 [“[S]pecial findings may accompany a general criminal verdict, even if not expressly authorized by statute, so long as they do not interfere with the jury’s deliberative process”].) Appellant asserts the court abused its discretion in denying his request for a special verdict because it had no legitimate reason to refuse it and because the court had prejudged the issue.
We do not agree. First we do not agree that the court had prejudged appellant’s Proposition 36 eligibility prior to the trial. During the appellant’s opening statement his counsel informed the jury that he had stipulated that he was guilty of Count 1, at which point the court interrupted appellant’s counsel. At side bar the court reminded counsel that the jury would not be making a determination whether the transport was for personal use. The court stated “that determination was made by the court.” Appellant focuses on the verb tense in the court’s remark to argue that the court had already determined prior to trial that appellant was ineligible for Proposition 36 treatment. Appellant makes too much of the court’s comment. Viewed in context of the entire trial, especially in light of the court’s statements during the jury’s deliberation when appellant made his record on the request for a special jury verdict, it appears the trial court had not in fact prejudged the matter. The court’s comments indicate it had been watching and observing the evidence presented during the trial and had yet to decide the matter and would not do so until sentencing; the court stated: “Best I can say now, is perhaps it’s transported for personal use; perhaps it was transported for the purpose of sale . . . .” Likewise, the court’s remarks and the parties’ arguments during sentencing do not convince us the court had rejected the application of Proposition 36 prior to trial.
Second, the court did not act irrationally in rejecting appellant’s request for a special jury verdict. The fact that the “personal use” determination is reserved for the court was sufficient reason to deny appellant’s request for a special jury verdict on the issue. The trial court would have in no way been bound by the jury’s finding on the sentencing factor. (See United States v. Watts (1997) 519 U.S. 148, 157 [“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”]; People v. Barasa, supra, 103 Cal.App.4th at pp. 295-296; People v. Glasper, supra, 113 Cal.App.4th 1104; People v. Dove, supra, 124 Cal.App.4th at p. 10 [jury’s acquittal on the charge of possession for sale did not bind the trial court . . . because Apprendi and Blakely did not apply, the trial court was free to redetermine the personal use issue . . .”].) Indeed, the burden of proof for sentencing factors is lower than for convictions or enhancements, and thus trial courts routinely find true sentencing factors that are related to allegations that have been rejected by juries. (See, e.g., People v. Towne (2008) 44 Cal.4th 63, 84-88 [acquittal in a criminal case does not preclude court from considering the underlying conduct for sentencing].) Consequently, it would have been a waste of time and resources to ask the jury to resume deliberations, after it had already spent several days deliberating to verdict on Count 1 and had deadlock on Count 2, to render a special verdict—one the court was free to ignore. The court acted well within its discretion in denying appellant’s request for a special jury finding on “personal use.”
II. Appellant Has Not Demonstrated Error In The Trial Court Conclusion On “Personal Use.”
During sentencing when the parties discussed whether appellant transported the drugs for “personal use” the following exchange occurred between the court and appellant’s trial counsel:
The Court: The Dove case does say that you have the burden to show that the transportation was for personal use. I found that the deputies who testified were credible. I also thought your client was credible. So I can’t say that it was transportation for personal use. I can’t definitely say it was transportation for other purposes. I don’t know. But the bottom line is you haven’t carried the day on convincing me that the transportation was for personal use. It was a large amount of drugs found, considering it was for personal use. I just don't know.
Appellant’s counsel: I think the testimony would rebut that it was a large amount for personal use and that it was kind of a very common amount for personal use.
The Court: I don’t see it that way. Your client has a third of an ounce. That’s a significant amount.
Appellant’s counsel: The testimony of the expert and actually [appellant] was that he goes through that in -- he tried to keep it for up to a week.
The Court: I found him credible. I found the deputy credible.
In appellant’s opening brief he asserts the court erred in allocating the burden of proof to him to demonstrate transportation for “personal use.” He asserts the prosecutor was required to demonstrate, beyond a reasonable doubt, that appellant transported the drugs for something other than personal use, and the court’s conclusion that the evidence on the issue was in equipoise meant that he was entitled to the benefit of Proposition 36 treatment.
Appellant is incorrect. As discussed elsewhere herein, it is well established that because “personal use” is a sentencing factor that serves to reduce punishment, the prosecutor is neither required to plead or prove its existence beyond a reasonable doubt. (See People v. Varnell, supra, 30 Cal.4th at pp. 1141-1144.) California courts have uniformly held the defendant, rather than the prosecutor, shoulders the burden of proof on this sentencing factor. (People v. Barasa, supra, 103 Cal.App.4th at pp. 295-296 [expressly rejecting the defendant’s argument that the burden of proof belonged to the prosecutor on the issue of personal use]; People v. Glasper, supra, 113 Cal.App.4th at p. 1115; People v. Dove, supra, 124 Cal.App.4th at pp. 9-11.)
In response to this authority, appellant urges this court to reject Basara, Dove and Gasper. He contends that placing the burden on a criminal defendant to prove by a preponderance of the evidence that his or her transportation (or possession) of drugs was for personal use violates due process rights under the federal constitution. Appellant maintains that due process requires the People to shoulder the burden of proof on “personal use” under the reasonable doubt standard.
Appellant did not assert this “due process” challenge in his opening brief. In addition, our review of the record indicates that appellant did not raise this issue before the trial court. Accordingly, we treat the issue as waived. (See People v. Gurule (2002) 28 Cal.4th 557, 632 [failure to assert that verdict form violated due process was not preserved for appeal because defense counsel did not assert objection on constitutional grounds in the trial court]; People v. Pecci (1999) 72 Cal.App.4th 1500, 1503 [by failing to raise point below, defendant waived argument that statute making him ineligible for probation violated his rights to due process and equal protection].) Even assuming for the sake of argument that the constitutional issue is properly before us, it is without merit.
First, the United States Supreme Court has concluded that using the “preponderance of the evidence” standard of proof to demonstrate sentencing factors does not violate due process. (See United States v. Watts, supra, 519 U.S. at p. 156 [application of the preponderance of the evidence standard at sentencing generally satisfies due process]; see also Apprendi v. New Jersey, supra, 530 U.S. at p. 490 [due process clause permits sentencing findings to be proven by preponderance of the evidence rather than beyond a reasonable doubt where such findings do not result in a penalty beyond the statutory maximum].)
Second, allocating the burden of proof to the defendant on the “personal use” issue does not infringe upon appellant’s due process rights. As mentioned in our prior discussion, “personal use” is not an element of the crime for which appellant was convicted. Likewise it does not trigger a sentencing enhancement. In obtaining the conviction on Count 1, the prosecutor had already demonstrated all of the elements necessary to warrant a sentence to prison or jail time. In contrast, Proposition 36 treatment is an alternative sentencing scheme; it acts as an “exception” to the punishment specified in the drug offense. (See People v. Varnell, supra, 30 Cal.4th at p. 1136.) Penal Code sections 1210 and 1210.1 are silent on the issue of burden of proof. As the court in Barasa noted, under Evidence Code section 500, “‘Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.’” Because the application of Proposition 36 effectively relieves the defendant from serving the sentence he or she would otherwise have received for the drug conviction, allocating the burden of proof to appellant on the threshold eligibility factor of “personal use” is not fundamentally unfair and does not offend due process. Appellant has presented no persuasive authority or argument that the assignment of the burden of proof in this manner is constitutionally infirm.
Appellant’s analogy to the concept of mens rea is inapt. He relies on Mullaney v. Wilber (1975) 421 U.S. 684, 691-704 in which the court found that due process requires the state to prove beyond a reasonable doubt the absence of heat of passion or sudden provocation to reduce homicide to manslaughter. Thus, appellant maintains the prosecutor here should have to prove appellant’s ineligibility for the reduced punishment under Proposition 36. The problem with appellant’s analogy is that Mullaney concerns a guilt phase determination of intent under which the prosecutor has been traditionally allocated the burden of proof beyond a reasonable doubt. The matter before us however, concerns a sentencing factor that reduces punishment. The Supreme Court has consistently determined that sentencing factors may, especially when they serve to lessen a defendant’s punishment, be treated differently than elements of guilt.
In view of all the foregoing we conclude that the court did not err in refusing to sentence appellant under Proposition 36. Using the preponderance of evidence standard, the trial court properly weighed the evidence and concluded it could not decide whether the transportation was for personal use or some other purpose. Thus because appellant had the burden of proof on the issue, the court did not err in sentencing appellant to jail time and formal probation rather than to Proposition 36 treatment.
DISPOSITION
The judgment is affirmed.
PERLUSS, P.J., ZELON, J.
Concomitantly, unlike appellant we see nothing in the Proposition 36 ballot materials to convince us the voters intended to allocate the burden of proof on the “personal use” issue to the People. As the Supreme Court said, by Proposition 36, the electorate intended to divert nonviolent defendants convicted of simple drug possession and drug use from incarceration into community-based substance abuse programs. (People v. Canty (2004) 32 Cal.4th 1266, 1280-1281.) However, it is also clear that the Proposition 36 remedy was only to apply to eligible defendants. It has not created a presumption that all defendants convicted of simple drug offenses are eligible for Proposition 36 treatment. Requiring defendants to prove their threshold eligibility (i.e., personal use) by the preponderance of the evidence, does not appear to conflict with the intent of the voters.