Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR187896
Jones, P.J.
A jury convicted John William McQueen (appellant) of transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a) ), ecstasy (§ 11379, subd. (a)), and marijuana (§ 11360, subd. (a)) and of possession of marijuana (§ 11357, subd. (a)). Appellant challenges his conviction on three grounds. He contends the trial court: (1) erred in denying his motion to suppress; (2) abused its discretion in admitting his prior felony convictions for impeachment purposes; and (3) erred in denying his request for Proposition 36 treatment.
Unless otherwise noted, all further statutory references are to the Health and Safety Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We provide factual and procedural details only where germane to appellant’s specific claims.
On the afternoon of January 25, 2007, Vallejo Police Officer Brian Crutcher conducted a traffic stop on Central Avenue in Vallejo. He arrested the driver of the car, appellant, and the passenger, Adam Richard Henry (Henry). Crutcher and other police officers searched appellant and the car and found cocaine base, ecstasy, and marijuana. They also found $2,600, several small clear plastic baggies commonly used for packaging narcotics, and a digital scale.
The prosecution charged appellant with: (1) transportation of cocaine base (§ 11352, subd. (a)); (2) transportation of ecstasy (§ 11379, subd. (a)); (3) transportation of marijuana (§ 11360, subd. (a)); (4) possession of cocaine base for sale (§ 11351.5); possession of ecstasy for sale (§ 11378); (5) possession of marijuana for sale (§ 11359); (6) driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); and (7) resisting arrest (Pen. Code, § 148, subd. (a)).
The prosecution charged Henry with possession of methamphetamine (§ 11377, subd. (a)) and with possession of a smoking device (§ 11364). A jury convicted Henry of both counts and a division of this court affirmed the conviction in an unpublished decision. (People v. Henry (July 28, 2008, A118624) [nonpub. opn.].)
Appellant’s Motion to Suppress
At the preliminary hearing, the magistrate denied Henry’s motion to suppress. Shortly before trial, appellant moved to suppress, contending that the traffic stop was illegal and unduly prolonged. At the special hearing on appellant’s motion, Henry renewed his suppression motion. The court concluded that Henry’s renewed motion would be based “on the transcript alone” and stated that “[i]n terms of the evidentiary portion” of Henry’s renewed motion, it was “going to limit” Henry to the preliminary hearing transcript. The parties then discussed whether Henry’s motion was timely and the court eventually denied the motion for failure to provide timely notice.
At the special hearing, Crutcher testified that he was driving a marked patrol car on Georgia Street in Vallejo at 3:30 p.m. on January 25, 2007. As he was driving, Crutcher noticed a blue Ford Taurus occupied by two males. The driver — later identified as appellant — “had his hand out the window” and “something about his hand [ ] drew [Crutcher’s] attention;” “it was fluttering about.” Crutcher looked more closely and saw that appellant was “twitching and moving around” while he was driving.
After making this observation, Crutcher stopped his car and “backed up enough to get behind [appellant] as he turned off Georgia Street” and onto Central Avenue. While Crutcher was behind appellant’s car, he saw appellant and another man “bending over in the vehicle moving furtively as if they were trying to conceal something or retrieve something from under the seats.” As appellant’s car turned onto Central, it went through the intersection and “did not yield properly to the oncoming traffic.” This caused the car next to appellant’s car to brake to allow appellant’s car to get out of the way. At that point, Crutcher decided to initiate a traffic stop based on appellant’s failure to yield, a Vehicle Code violation.
On cross-examination, Crutcher explained that the second car was about three car lengths away from appellant’s car — approximately 60 feet — when appellant failed to yield. As Crutcher explained it, appellant’s car and the second car were close enough that when appellant “entered into the roadway from Georgia [Street]” he “caused [the second car] to brake so that he could safely go through[.]”
While Crutcher advised his dispatcher that he was going to make a traffic stop, appellant’s car “abruptly pulled into a driveway” on Central Avenue without signaling. At that point, Crutcher got out of his patrol car and approached the passenger side of appellant’s car. As he did so, Crutcher saw appellant in the driver’s seat “fidgeting around in his seat, moving in what appeared to be uncontrollable jerking motions, [and] sweating[.]” Crutcher believed that appellant was under the influence of a stimulant.
Crutcher greeted Henry, the passenger, and asked appellant for identification so that he could perform a warrant check. Then Crutcher asked appellant whether he was under the influence of drugs. In response, appellant “got very defensive and started moving about even more . . . uncontrollably.” Appellant said, “‘I’m going in the house’” and opened the car door. Crutcher told appellant to get back in the car; then Crutcher “moved around the rear of the car and approached [appellant] in the driver’s seat.” At first, appellant refused to comply with Crutcher’s orders. Eventually, Crutcher subdued appellant and arrested him.
Following Crutcher’s testimony, the court noted, “[i]n this case, there was testimony . . . that the other vehicle which did brake was already in the intersection, so the issue of an immediate hazard is not an issue. [¶] However, even if were you to reach that secondary issue about the immediate hazard, it’s a factual determination, and this officer’s testimony coupled with my understanding of the distance would indicate to me that an immediate hazard did or could reasonably be concluded to exist which would give probable cause for the traffic stop.” At the conclusion of the hearing — and after permitting the parties to argue at length — the court determined that “there was probable cause” for the traffic stop because appellant’s failure to yield created an “immediate hazard” within the meaning of Vehicle Code section 21803.
Section 21803, subdivision (a) of the Vehicle Code, entitled “Yield right-of way,” provides: “The driver of any vehicle approaching any intersection which is controlled by a yield right-of-way sign shall, upon arriving at the sign, yield the right-of-way to any vehicles which have entered the intersection, or which are approaching on the intersecting highway close enough to constitute an immediate hazard, and shall continue to yield the right-of-way to those vehicles until he or she can proceed with reasonable safety.”
Trial and Sentencing
Before trial, the prosecution moved in limine to admit evidence of appellant’s 1989 convictions for grand theft (Pen. Code, § 487) and forgery (Pen. Code, § 470). The prosecution contended that the convictions involved crimes of moral turpitude and should be admitted to impeach appellant. Appellant objected, contending that the convictions were 17 years old and that it had “been ten years since his last parole violation. . . .” Appellant also argued that “it would be a disincentive for him to take the witness stand . . . to bring that up, having it [the prior convictions] be so old.” Appellant reasoned that he had “earned the right to testify without being impeached based on the ten years he has lived and hasn’t suffered a prior conviction since 17 years ago.” After reviewing appellant’s written opposition, the court granted the prosecution’s motion.
At trial, Crutcher testified about the circumstances leading up to (and including) appellant’s arrest. Appellant also testified. Among other things, appellant stated that he was under the influence of drugs the night of the incident. He testified that he has never sold drugs and that he possessed the drugs on the day of the incident “for personal use only.” He explained that he had been using drugs for about 21 years.
The jury convicted appellant of transportation of cocaine base (§ 11352, subd. (a)), ecstasy (§ 11379, subd. (a)), and marijuana (§ 11360, subd. (a)), and of possession of marijuana (§ 11357, subd. (a)). It found appellant not guilty of possessing marijuana for sale (§ 11359). The jury was unable to reach a verdict on the charges of possession of cocaine base and ecstasy for sale (§§ 11351.5, 11378, respectively) and of resisting arrest (Pen. Code, § 148, subd. (a)). The court declared a mistrial as to those counts and dismissed them.
At the sentencing hearing, the court suspended imposition of sentence and placed appellant on probation for three years, with the requirement that he serve 365 days in county jail. The court denied appellant’s request for Proposition 36 treatment.
It does not appear that appellant filed a written motion to be sentenced pursuant to Proposition 36. At the sentencing hearing, however, appellant argued that he was “entitled to and eligible for Prop[.] 36.” The court rejected appellant’s argument and noted, “[I] do think that the facts that came out at trial[,] while there was not a conviction of the possession for sale, certainly, there was enough information there that would [support a conviction], and I did deny a request for Prop[osition] 36 [treatment] on that basis.”
DISCUSSION
The Court Properly Denied Appellant’s Motion to Suppress
Appellant contends the trial court erred in denying his motion to suppress for three reasons. First, he contends he was unlawfully detained on Georgia Street when Crutcher pulled up behind his car. Next, appellant argues that Crutcher lacked reasonable suspicion that he committed a traffic violation. Finally, he contends the detention, even if supported by reasonable suspicion, was unduly prolonged.
We review the trial court’s denial of appellant’s motion to suppress evidence by “view[ing] the record in the light most favorable to the trial court’s ruling, [and] deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court’s application of the law to the facts. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
A. Appellant Was Not Detained on Georgia Street
Appellant’s first claim is that he was unlawfully detained when Crutcher “pulled the police car next to appellant’s car, looked at him, . . . backed up and got behind him.” We disagree. As an initial matter — and as appellant concedes — he has forfeited this claim because he did not raise it in the trial court. (People v. Williams (1999) 20 Cal.4th 119, 129-130; People v. Oldham (2000) 81 Cal.App.4th 11-15.) In his motion to suppress, appellant contended that the traffic stop on Central Avenue was not supported by reasonable suspicion because he did not violate Vehicle Code section 21803. Appellant did not contend that he was unlawfully detained when Crutcher drove behind him on Georgia Street.
For the first time in his reply brief, appellant contends that his trial counsel was ineffective for failing to raise this issue in the trial court. We will not consider arguments raised for the first time in the reply brief “‘unless good reason is shown for failure to present them before.’” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764, quoting Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Here, appellant has not shown a good reason for waiting until his reply brief to raise an ineffective assistance of counsel claim. As a result, we decline to consider it. (People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30 [“Generally, a contention may not be raised for the first time in the reply brief”].)
But even if we were to consider the merits of appellant’s claim, we would reject it. A person is not “seized” within the meaning of the Fourth Amendment unless he or she is somehow physically restrained or voluntarily submits to an officer’s authority. (California v. Hodari D. (1991) 499 U.S. 621, 625-626 (Hodari D.).) When an officer approaches a person without a show of authority, the Fourth Amendment is not implicated because the officer has not limited the person’s freedom. (Florida v. Royer (1983) 460 U.S. 491, 497 (Royer).) “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” (United States v. Mendenhall (1980) 446 U.S. 544, 554-555.)
The California Supreme Court has rejected a contention almost identical to the one appellant makes here. (People v. Turner (1994) 8 Cal.4th 137, 180-81, disagreed with on another point in People v. Griffin (2004) 33 Cal.4th 536, 555 & fn. 5.) In Turner, the defendant contended that an unlawful detention occurred when a police officer “‘stopped his marked patrol car, backed up towards [the defendant’s car], and then followed it.’” (Turner, supra, 8 Cal.4th at pp. 179-180.) The Turner court held that no detention occurred when the police officer stopped his patrol car because “the fact that a police vehicle had stopped near defendant’s vehicle would not communicate to a reasonable person that the officers intended to detain defendant. . . .” (Id. at p. 180, original italics.) The court also held that there was no detention when the officer followed the defendant’s car because there was no physical force or, absent physical force, any submission to the assertion of authority. (Id. at pp. 180-181.)
The same is true here. The fact that Crutcher momentarily stopped his patrol car near appellant’s car would not communicate to a reasonable person that he or she was not free to leave. And there was no detention when Crutcher drove behind appellant’s car because there is no evidence in the record that Crutcher used physical force or asserted his authority. Even assuming for the sake of argument that there was a show of authority, appellant did not submit to that authority. (Hodari D., supra, 499 U.S. at p. 629.) Instead of stopping when Crutcher pulled up behind him, appellant continued driving toward Central Avenue. For these reasons, Crutcher did not detain appellant on Georgia Street.
B. The Detention on Central Avenue Was Supported by Reasonable Suspicion
Next, appellant contends that if he was not detained on Georgia Street, he “clearly was detained after Crutcher . . . got out of the car, [and] told [appellant], ‘get back in the car.’” Appellant claims that the detention was invalid because it was not “supported by reasonable suspicion.” In response, the People contend that Crutcher had probable cause to believe that appellant had committed a traffic violation. We agree.
“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” (Whren v. United States (1996) 517 U.S. 806, 810.) In other words, “The Fourth Amendment’s protection against unreasonable searches and seizures dictates that traffic stops must be supported by articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law. . . .” (People v. Durazo (2004) 124 Cal.App.4th 728, 731.)
Here, the trial court concluded that Crutcher had probable cause to believe that appellant’s failure to yield caused an “immediate hazard” within the meaning of Vehicle Code section 21803. Substantial evidence supports this finding. At the special hearing on appellant’s motion to suppress, Crutcher testified that appellant drove through the intersection on Central Avenue without yielding to oncoming traffic and that appellant’s failure to yield caused the second car to brake so that appellant “could safely go through. . . .” As a result, ample evidence supported the trial court’s finding that Crutcher could reasonably conclude that an immediate hazard did exist when appellant drove into the intersection and crossed in front of oncoming traffic without yielding.
Appellant also argues that the trial court’s finding is not supported by substantial evidence because the court relied on the preliminary hearing transcript, which is unavailing against him. A close reading of the transcript for the hearing on appellant’s motion to suppress demonstrates that appellant is mistaken.
C. The Detention Was Not Unduly Prolonged
Finally, appellant contends that the length of the detention was “not reasonable in duration.” Appellant faults Crutcher for approaching the passenger side of his car instead of the driver side and for “watching for signs that appellant was under the influence of drugs” during the traffic stop.
Appellant has not cited any authority to support his claim that a police officer conducting a traffic stop is required — in every instance — to approach the driver’s side of the car first. And appellant cannot seriously contend that Crutcher was required to turn a blind eye to appellant’s “fidgeting,” “uncontrollable jerking,” and “sweating” when he asked for appellant’s identification.
Although “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop[,]” (Royer, supra, 460 U.S. at p. 500) there is no rigid formula for determining how long a detention may last. (United States v. Sharpe (1985) 470 U.S. 675, 686 (Sharpe); see also People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [“[t]here is no hard-and-fast limit as to the amount of time that is reasonable; rather, it depends on the circumstances of each case”]; People v. Gomez (2004) 117 Cal.App.4th 531, 537-538 [“There is no fixed time limit for establishing the constitutionality of an investigatory detention. . . . [A] detention will be deemed unconstitutional ‘when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible . . .’”].)
The question here is whether Crutcher “‘pursued [his] investigation in a diligent and reasonable manner.’” (People v. Williams (2007) 156 Cal.App.4th 949, 960, quoting Sharpe, supra, 470 U.S. at p. 687; see also People v. Soun (1995) 34 Cal.App.4th 1499, 1520.) The answer is yes. Crutcher testified that he approached the car on the passenger side, greeted Henry, and then asked appellant for his identification so that he could perform a warrant check. Next, he asked appellant whether he was under the influence of narcotics. In response, appellant “got very defensive” and tried to get out of the car. There is no indication in the record that Crutcher delayed his investigation or that the stop exceeded the amount of time necessary to issue a citation. “‘[I]nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.]’ [Citation.]” (People v. Vibanco (2007) 151 Cal.App.4th 1, 13, quoting Gallardo, supra, 130 Cal.App.4th at p. 238.) Accordingly, appellant’s claim about the length of the detention fails.
The Admission of Appellant’s Prior Convictions Was Not an Abuse of Discretion
Appellant’s second basis for reversal is that the trial court abused its discretion when it permitted the prosecution to impeach him with two prior felony convictions for forgery and grand theft. A trial court has discretion to admit a prior conviction involving moral turpitude for impeachment purposes. (People v. Clair (1992) 2 Cal.4th 629, 654; People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) In exercising its discretion, the trial court must consider the following four factors: “(1) whether the prior conviction reflects adversely on [ ] [the defendant’s] honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions.” (Mendoza, supra, at p. 925.) We review the court’s ruling for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197; People v. Lucas (1995) 12 Cal.4th 415, 448-449.)
Appellant acknowledges that he was convicted of grand theft (Pen. Code, § 487) and forgery (Pen. Code, § 470), both of which involve moral turpitude. (People v. Wheeler (1992) 4 Cal.4th 284, 289, superseded by statute on another point in People v. Duran (2002) 97 Cal.App.4th 1448, 1460 [agreeing with lower court’s conclusion that “[g]rand theft reflects dishonesty and is a crime involving moral turpitude”]; People v. Parrish (1985) 170 Cal.App.3d 336, 349 [forgery is a crime of moral turpitude].) He does not contend that the court failed to consider the proper factors or to exercise its discretion pursuant to Evidence Code section 352. Instead, he contends that the trial court erred by admitting the prior convictions because there was insufficient evidence that they were felonies. Although he concedes that “[t]he record seemingly indicates both conviction[s] were felonies,” he suggests that the convictions may have been misdemeanors because he was placed on probation following those convictions. According to appellant, the imposition of probation could indicate that the offenses were reduced to misdemeanors pursuant to Penal Code section 17, subdivision (b).
Penal Code section 17, subdivision (b) provides in relevant part, “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] . . . .[¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” (Pen. Code, § 17, subd. (b)(3).)
This argument fails for several reasons. First, appellant failed to raise this argument in the trial court and, as a result, he is precluded from doing so here. (See, e.g., People v. Ramirez (2003) 109 Cal.App.4th 992, 997-998, fn. 3.) The court and the parties repeatedly referred to appellant’s 1989 convictions as “felony conviction[s]” and appellant never argued to the contrary. Second, the record demonstrates that appellant was sent to state prison after his probation was revoked. “When a defendant is sentenced to state prison, the offense is a felony; when the defendant is sentenced to county jail, the offense is a misdemeanor.” (People v. Terry (1996) 47 Cal.App.4th 329, 332; Pen. Code, § 17, subd. (a).) Because appellant was sent to state prison after his probation was revoked, the 1989 convictions were for felony offenses. Finally, appellant admitted he suffered a felony conviction on cross-examination.
Appellant also contends that the admission of the prior convictions was an abuse of discretion because the convictions were “ancient.” We disagree. “[C]onvictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. [Citations.]” (Mendoza, supra, 78 Cal.App.4th at pp. 925-926.) For example, in People v. Green (1995) 34 Cal.App.4th 165, 183, the court admitted a 20-year-old prior conviction. It explained that the defendant’s 1973 conviction was followed by five additional convictions in 1978, 1985, 1987, 1988, and 1989. The court reasoned that “‘the systematic occurrence of [appellant’s] priors over a 20-year period create[d] a pattern that [was] relevant to [his] credibility.’” (Id. at p. 183, quoting People v. Muldrow (1988) 202 Cal.App.3d 636, 648.)
Similarly, in Mendoza, the court concluded that a 17-year-old conviction was not too remote. The court reasoned that the “defendant ha[d] not led a legally blameless life since 1979, as he had suffered multiple convictions in 1989, 1991, and in 1993. This is so despite the apparent 10-year gap between defendant’s 1979 and 1989 convictions. . . . Moreover, defendant’s subsequent convictions in 1989, 1991, and 1993 were for theft-related crimes, which are in and of themselves probative on the issue of defendant’s credibility. Thus, the remoteness factor would not mitigate against admission of the priors.” (Mendoza, supra, 78 Cal.App.4th at p. 926.) And in Muldrow, a division of this court held that the trial court did not abuse its discretion in admitting prior convictions that were 10 to 20 years old. (Muldrow, supra, 202 Cal.App.3d at pp. 647-648.) The court explained that “[t]he combination of the frequency of the convictions, not only from 1965 to 1975 but throughout the 20-year period, plus their relevance to dishonesty, give merit to the prosecution’s argument that a jury would ‘find the defendant much less credible’ knowing that he had not led a law-abiding life since his first felony conviction in 1965.” (Id. at p. 648, original italics.)
The same is true here. Appellant concedes that he has “reoffended” since 1989 but urges us to overlook his more recent criminal activity because he has not “committ[ed] heinous crimes.” We decline to do so. Appellant’s probation was revoked in 1992 and appellant spent three years in prison. His parole was subsequently revoked three times: in 1994, 1995, and 1996. And in 1995 and 2004, appellant suffered misdemeanor convictions. Appellant had not “led a legally blameless life” since 1989 (Mendoza, supra, 78 Cal.App.4th at p. 926) and, as a result, “‘the systematic occurrence of [his] priors over a [18]-year period create[d] a pattern that [was] relevant to [his] credibility.’” (Green, supra, 34 Cal.App.4th at p. 183, quoting Muldrow, supra, 202 Cal.App.3d 648.)
Appellant correctly notes that he was 22 years old when he was convicted of the felonies at issue. But he has spent a significant portion of time since those convictions in custody and has reoffended on several occasions. The length of time that appellant has been incarcerated — considered in conjunction with the times he has reoffended when released — supports an argument against exclusion of his 1989 convictions. The only case appellant cites to support his argument is People v. Burns (1987) 189 Cal.App.3d 734, 738. In that case, the court considered whether, after the passage of Proposition 8, “the trial court retains discretion to exclude evidence of a remote prior conviction offered to impeach the testimony of a witness in a criminal trial.” (Burns, supra, at p. 736, fn. omitted.) The court answered the question in the affirmative and remanded the case to the trial court with directions to consider, among other things, “[t]he length of time that has elapsed since the conviction.” (Id. at p. 738, capitalization omitted.) The court noted, “a conviction that is 20 years old, as in the case at bar, certainly meets any reasonable threshold test of remoteness.” (Id. at p. 738.) Burns, however, is of little assistance to appellant because the convictions in this case are not 20 years old and because there is no indication that the Burns defendant suffered a number of convictions after the initial conviction. (Id. at p. 736.)
The Court Properly Concluded Appellant Was Ineligible for Proposition 36 Treatment
Finally, appellant contends the court erred in not sentencing him “under the provisions of” Proposition 36. Appellant does not challenge the sufficiency of the evidence to support the court’s finding that appellant was ineligible for Proposition 36 treatment. Instead, he claims the court erred in allocating the burden of proof to him.
The Substance Abuse and Crime Prevention Act of 2000, also known as Proposition 36, “is codified in Penal Code sections 1210, 1210.1, and 3063.1 and Health and Safety Code section 11999.4 et seq.” (People v. Canty (2004) 32 Cal.4th 1266, 1273, fn. 1; People v. Dove (2004) 124 Cal.App.4th 1, 6.) Proposition 36 ‘“dramatically changed the penal consequences for those convicted of nonviolent drug possession offenses.” [Citation.]’” (Dove, supra, at p. 6, quoting People v. Guzman (2003) 109 Cal.App.4th 341, 346.) “Following the enactment of Proposition 36, . . . 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.” (Canty, supra, 32 Cal.4th at pp. 1272-1273; Pen. Code, § 1210.1, subd. (a).) Penal Code section 1210, subdivision (a) defines “[t]he term ‘nonviolent drug possession offense’” as “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. . . . ”
In People v. Barasa (2002) 103 Cal.App.4th 287, 295-296, the Fourth District Court of Appeal held that a defendant seeking Proposition 36 treatment has the burden of proving that the possession or transportation of the controlled substance was for personal use. There, the defendant argued that the prosecution “must prove the negative; that is, the drugs transported were transported for commercial rather than personal usage.” (Id. at p. 296.) The Barasa court disagreed, concluding that “the law is clearly settled to the contrary.” (Ibid.) It explained that Evidence Code sections 500 and 550 provide that “‘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.’” (Barasa, supra, 103 Cal.App.4th at p. 296, quoting Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 144-145.)
Every court that has considered this issue has reached a similar result. (See, e.g., Dove, supra, 124 Cal.App.4th at pp. 10-11 [citing Barasa with approval]; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115-1116 [adopting the reasoning from Barasa and concluding that the defendant has the burden to prove that he or she possessed the drugs for personal use]; cf. People v. Atwood (2003) 110 Cal.App.4th 805, 812-813 [distinguishing Barasa but noting that a defendant seeking a grant of probation pursuant to Proposition 36 has the burden of proof].) Appellant has not persuaded us that Barasa, Dove, and Glasper were wrongly decided. As a result, we reject appellant’s claim that the trial court erred in allocating the burden to him to establish his eligibility for Proposition 36 treatment. We conclude the court properly rejected appellant’s request for such treatment.
DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Dondero, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.