Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. FSB054158, W. Robert Fawke and William Jefferson Powell IV, Judges. Affirmed as modified.
Judge Fawke made the contested ruling on the motion to suppress. Judge Powell presided over the trial and sentencing.
Francisco J. Sanchez, 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, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant guilty of transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) (count 1) and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) (count 3). Defendant thereafter admitted that he had previously been convicted of a prior drug-related offense within the meaning of Health and Safety Code section 11370.2, subdivision (a). Defendant was sentenced to a total term of seven years in state prison as follows: the middle term of four years on count 1, plus a consecutive three-year term for the prior drug conviction allegation, and a concurrent term of two years on count 3. On appeal, defendant contends (1) the trial court erred in denying his suppression motion; (2) the trial court erred in denying Proposition 36 (Pen. Code, § 1210 et seq.) treatment and making a factual finding that the heroin found on his possession was being transported for purpose of sale; and (3) his sentence on count 3 should have been stayed pursuant to section 654. We agree with the parties that defendant’s sentence on count 3 should have been stayed but reject defendant’s remaining contentions.
The jury found defendant not guilty of possession of a controlled substance for sale (Health & Saf. Code, § 11351) as alleged in count 2.
All future statutory references are to the Penal Code unless otherwise stated.
I
The factual background up until the patdown search is taken from the suppression hearing.
On October 7, 2005, about 6:30 a.m., San Bernardino County Police Officer Michael Janzen and three other San Bernardino County police officers were in full uniform patrolling the area of Mount Vernon Avenue and Fifth Street in an unmarked van looking for narcotics activity when Officer Janzen saw defendant riding his bicycle illegally on the sidewalk. The officers stopped the van, and Officers Janzen and Bragg exited the van. Officer Janzen approached defendant and asked him to stop. Defendant complied. Officer Bragg did not say a word and stood beside Officer Janzen.
Officer Janzen asked defendant where he was going. Defendant responded that he was on his way to McDonald’s. This appeared odd to Officer Janzen because defendant was riding in the opposite direction of the nearest McDonald’s. Officer Janzen then asked defendant if he had anything illegal in his possession. Defendant replied that he did not. Defendant was cooperative and did not indicate that he did not want to talk with the officer. In addition, the tone of the conversation was “very normal,” and no weapons were drawn.
Officer Janzen asked defendant if he could “check him,” and defendant agreed. At that point, Officer Janzen asked defendant to get off his bicycle. Defendant got off his bicycle and handed it to another (third) officer. Officer Janzen again asked defendant if he could check for anything illegal, and defendant said, “[S]ure.” For officer safety and standard procedure reasons, Officer Janzen then had defendant place his hands behind his back and proceeded with a patdown search. Again, defendant was very cooperative and complied with Officer Janzen’s instructions. The entire encounter lasted no more than five minutes, and defendant was cooperative the entire time.
Officer Janzen reached into defendant’s left front pocket and found three small circular rubber substances. Based on his training and experience Officer Janzen opined them to be heroin bindles wrapped in balloons. A presumptive field test and later laboratory tests confirmed Officer Janzen’s suspicions. Officer Janzen also opined that each individual bindle contained one “hit,” or one usable amount.
When Officer Janzen removed the balloons, defendant stated that he forgot they were in his pocket. Defendant was immediately handcuffed and arrested. During a search incident to an arrest, Officer Janzen found eighteen $1 bills in defendant’s right front pants pocket. In one of defendant’s rear pants pockets, Officer Janzen found a wallet containing three $20 bills, three $10 bills, and three $5 bills. Officer Janzen believed these amounts were consistent with street-level heroin sales. Defendant did not have any narcotics paraphernalia. Upon further questioning, defendant stated he was unemployed. Based on his background, training, and experience, Officer Janzen concluded defendant possessed the balloons of heroin for purposes of sale.
Defendant’s mother testified that defendant lived at her home and that he earned money as a mechanic and gardener. She explained that prior to his arrest, defendant worked on two vehicles for two women and that she recalled these women paid defendant about two days before her son was arrested.
II
DISCUSSION
A. Denial of Suppression Motion
Defendant contends the trial court erred in denying his motion to suppress the three balloons of heroin because they were obtained during an unlawful detention. We disagree.
“The Fourth Amendment to the United States Constitution provides that ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .’ The protections afforded by the Fourth Amendment have been held to be applicable to the states through the due process clause of the Fourteenth Amendment. [Citation.] In deciding the reasonableness of the search and seizure at issue here, we are bound by the lower court’s findings of fact so long as they are supported by substantial evidence. [ Citation.] We determine independently, however, the legal issue of whether, on the facts found, the search was reasonable within the meaning of the Constitution. [Citation.]” (People v. Gorrostieta (1993) 19 Cal.App.4th 71, 80; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597; Ornelas v. U.S. (1996) 517 U.S. 690 [116 S.Ct. 1657, 134 L.Ed.2d 911].)
In determining whether an unreasonable seizure has occurred, police contacts fall into one of three basic categories: a formal arrest or similar restraint on an individual’s freedom of movement, which requires probable cause; a detention, which is limited in duration, scope, and purpose and requires an articulable suspicion that the individual was or will be involved in criminal activity; and a consensual encounter, which does not involve any restraint on the individual’s freedom and, thus, requires no justification. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
In determining whether the contact constituted a seizure (i.e., an arrest or a detention) or consensual encounter, we apply an objective test. An individual’s subjective perceptions are irrelevant. The test asks only whether the officer’s words or actions would have conveyed to a reasonable person that he was not free to go about his own business. (People v. Celis (2004) 33 Cal.4th 667, 673, citing California v. Hodari D. (1999) 499 U.S. 621, 628 [111 S.Ct. 1547, 113 L.Ed.2d 690] and Kaupp v. Texas (2003) 538 U.S. 626, 629 [123 S.Ct. 1843, 155 L.Ed.2d 814].) Evidence of the officer’s use of physical force or a show of restraint of a person’s liberty to walk away usually indicates a seizure. (Celis, at p. 673.)
A court must consider all the circumstances to determine whether a seizure has occurred. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) “Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled.” (Ibid.)
The circumstances in this case reveal that the officers’ contact with defendant was a consensual encounter. After observing defendant riding his bicycle illegally on a sidewalk, Officer Janzen approached defendant and asked if they could talk. Defendant agreed. Officer Janzen then asked defendant some basic questions, such as where he was going, which defendant readily and willingly answered. A Fourth Amendment seizure does not occur merely because a peace officer asks general questions. (United States v. Drayton (2002) 536 U.S. 194, 203-204 [122 S.Ct. 2105, 153 L.Ed.2d 242] [officers boarded bus and questioned passengers]; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 [peace officer’s request for identification does not convert a consensual encounter into a detention].) Finding defendant’s response odd, Officer Janzen then asked defendant if he had anything illegal in his possession and whether he could “check him,” to which defendant readily agreed. Defendant was very cooperative during the entire incident and did not indicate that he did not want to talk with the officer. Additionally, though there were four officers present, the tone of the conversation was “very normal,” no officer had his or her weapon drawn, and the incident lasted no more than five minutes. Given such routine, nonaccusatory conversation, defendant could not reasonably have believed that his liberty was being restrained. (People v. Hughes, supra, 27 Cal.4th at p. 328.)
During the course of the consensual encounter, which was not unduly prolonged, defendant willingly consented to be searched. Defendant argues his consent was a product of duress or coercion because he was surrounded by four uniformed and armed officers.
“It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [93 S.Ct. 2041, 36 L.Ed.2d 854].) Consensual searches have long been approved “because it is . . . reasonable for the police to conduct a search once they have been permitted to do so.” (Florida v. Jimeno (1991) 500 U.S. 248, 250-251 [111 S.Ct. 1801, 114 L.Ed.2d 297].) However, if under all the circumstances it appears that the consent was not voluntarily given -- “that it was coerced by threats or force, or granted only in submission to a claim of lawful authority” -- then the consent is invalid and the search unreasonable. (Schneckloth, at p. 233.)
The prosecution bears the burden of establishing that the consent upon which a search is based was voluntarily given and was unaffected by duress or coercion. (Bumper v. State of North Carolina (1968) 391 U.S. 543, 548-549 [88 S.Ct. 1788, 20 L.Ed.2d 797]; People v. James (1977) 19 Cal.3d 99, 106.) “The voluntariness of the consent is in every case ‘a question of fact to be determined in the light of all the circumstances.’ [Citations.]” (James, at p. 106; see also Schneckloth v. Bustamonte, supra, 412 U.S. at p. 227.) Accordingly, the trial court’s findings on this issue, either express or implied, must be upheld on appeal if they are supported by substantial evidence. All presumptions favor the proper exercise of the trial court’s power to judge the credibility of witnesses, resolve conflicts, weigh evidence, and draw factual inferences. (James, at p. 107.)
There is no evidence in the totality of circumstances as reflected in this record to support defendant’s assertion that because he was “surrounded by four uniformed and armed police officers” his consent was not voluntary. Officer Janzen testified that initially he and another officer approached defendant; later a third officer joined in the consensual encounter. However, the third officer remained 10 feet away from defendant and had no further involvement until he took defendant’s bicycle for safekeeping, after defendant agreed to be searched. The fourth officer remained in the van. It appears Officer Janzen was the only one who spoke to defendant, and he did so in a normal tone of voice.
In addition, Officer Janzen did not claim a right to search without permission. He did not order defendant to consent to the search. He asked him to do so, and defendant freely granted permission: He said “sure” twice upon being asked for permission to be searched. Moreover, there was no evidence of duress or coercion. Officer Janzen stopped defendant legally. Neither he nor the other officers drew their guns, threatened defendant, or made any other show of force. By all measurable criteria, defendant’s consent was voluntary.
B. Eligibility for Proposition 36 Treatment
Prior to defendant’s sentencing, the probation officer recommended state prison, noting that defendant had numerous prior convictions, including three prior convictions for possession of a controlled substance for sale. The probation officer also pointed out that defendant had served three separate prison terms, had violated probation and parole several times, and had several opportunities for drug treatment, to no avail.
At sentencing, defense counsel asked the court to make a finding that the transportation charge in count 1 was for personal use in order to make it a nonviolent drug possession offense under Proposition 36. Defense counsel argued that the jury had implicitly reached this conclusion by acquitting defendant on count 2 (possession of a controlled substance for sale). Counsel also noted that defendant was a long-time drug addict; that the three balloons could have been for one use as acknowledged by Officer Janzen at trial; and that defendant could have intended to use the heroin at the park, or he already could have used heroin before leaving his house. The prosecutor objected, requesting that, based on the trial testimony and the probation officer’s evaluation, the trial court find defendant ineligible for probation and drug treatment under Proposition 36.
In sentencing defendant, the trial court addressed the issue of his eligibility for Proposition 36 treatment. Citing People v. Barasa (2002) 103 Cal.App.4th 287 (Barasa) and People v. Glasper (2003) 113 Cal.App.4th 1104 (Glasper), the court noted that it is the court’s duty to determine whether defendant’s transportation conviction was for personal use or commercial purposes. The court found that in this case, based on the evidence at trial and the probation officer’s report, defendant transported the heroin for commercial purposes. Specifically, the court noted that defendant’s possession of the heroin, along with the cash and lack of paraphernalia to ingest the heroin, indicated defendant had the product and the means to make a drug transaction. The court found defendant’s mother’s testimony that defendant had earned the exact amount of money found in defendant’s possession incredible, pointing out that her testimony was inconsistent with the defense assertion that defendant was a life-long heroin user who only sporadically worked and “squat[ted]” at his elderly mother’s house. The court further noted that if defendant were truly a simple addict and came into possession of $123 two to three days prior to being arrested, he would have spent it on heroin within hours of obtaining it. The court therefore found defendant ineligible for treatment under Proposition 36.
Defendant asserts the trial court erred by finding him ineligible for probation and drug treatment under Proposition 36 (§ 1210 et seq.), arguing the 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. He also claims that, under the federal Constitution, the finding for purposes of Proposition 36 that the possession and transportation of the drugs were not for personal use had to be made both by a jury and beyond a reasonable doubt.
“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.) 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.]” (Id. at p. 1273, fn. 1.)
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. . . .”
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 Barasa, our colleagues in Division One 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 section 1210. (Barasa, supra, 103 Cal.App.4th at pp. 290, 293-296.) First, the court addressed the argument that the trial court’s finding violated the principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi). Quoting People v. Sengpadychith (2001) 26 Cal.4th 316 at page 326, the court 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, Barasa 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, Barasa addressed the burden of proof regarding whether a drug transportation offense was “for personal use” within the meaning of Proposition 36. (Barasa, at pp. 295-296.) The court 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 he 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 . . . .” (Id. at p. 296.) Accordingly, the court affirmed the judgment. (Id. at p. 297.)
In Glasper, the Sixth District Court of Appeal rejected the defendants’ 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.” (Glasper, supra, 113 Cal.App.4th at p. 1112; see also id. at p. 1116.) 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.” (Id. 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.) Glasper rejected the argument that the trial court’s finding of Proposition 36 ineligibility violated Apprendi, adopting Barasa’s reasoning and extensively quoting Barasa. (Glasper, at pp. 1115-1116.) Accordingly, Glasper upheld the trial court’s denial of the motions for Proposition 36 treatment. (Glasper, at p. 1116.)
In Glasper, the three defendants 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.)
In People v. Dove (2004) 124 Cal.App.4th 1 (Dove), this court cited both Barasa and Glasper (as well as In re Varnell (2003) 30 Cal.4th 1132, a significant intervening case) 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.) We 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.) We rejected the argument that the trial court’s finding of Proposition 36 ineligibility violated Apprendi. (Dove, at pp. 8-9.) In so doing, we 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. (Dove, at p. 10.) However, “when a defendant is ineligible, a prison sentence is equally mandatory.” (Ibid.) We 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.” (Id. at pp. 10-11.) Finally (and possibly most importantly for the instant case), we 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.]” (Id. at p. 11, italics added.) Accordingly, we affirmed the judgment. (Id. at p. 12.)
“In Varnell, the main issue was whether a trial court has the power under Penal Code section 1385 to strike a prior conviction so as to make the defendant eligible for Proposition 36 sentencing. [Citation.] Our Supreme Court held it does not. [¶] It reasoned, in part, that Penal Code section 1385 allows the trial court to strike only charges and allegations, and a prior conviction, when used for this purpose, does not have to be pleaded. [Citation.] The defendant [in Varnell], however, argued that such a prior conviction must be pleaded and proved as a matter of due process. [Citation.] The Supreme Court disagreed; in the process, it specifically distinguished Apprendi: ‘. . . Apprendi . . . holds that any fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime must be submitted to a jury and proved beyond a reasonable doubt. [Citations.] Here, since the statutory maximum for petitioner’s crime is three years in prison [citation], no finding by the trial court increased the penalty beyond the statutory maximum. [Citation.] Moreover, nothing in [Penal Code] section 1210.1 could have created an enhancement to petitioner’s sentence since, when it applies, section 1210.1 reduces the potential punishment. [Citations.]’ [Citation.] The Supreme Court cited Barasa with approval. [Citation.]” (Dove, supra, 124 Cal.App.4th at p. 9.)
Defendant essentially 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 of transportation of a controlled substance and of simple possession. He argues the trial court erred by redetermining the facts found by the jury and that the trial court’s reliance on Barasa and Glasper was misplaced, as “each decision was fact specific.”
The jury’s verdict finding defendant guilty of only the offenses of transportation of heroin and possession of heroin (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 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 section 1210.
Therefore, the jury verdict finding defendant guilty of simple drug possession and transportation of a controlled substance did not equate with a finding he necessarily possessed those drugs for personal use within the meaning of section 1210. (Dove, supra, 124 Cal.App.4th at p. 11.) Furthermore, the jury’s verdict acquitting defendant of possession for sale did not equate with a finding he necessarily possessed those drugs for personal use. On the contrary, defendant’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 section 1210.
Because the jury’s verdict did not decide the question of whether defendant’s drug possession was for personal use within the meaning of section 1210, the trial court properly addressed that issue and found, by a preponderance of the evidence, defendant’s drug possession was not for personal use. (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. Rather, the trial court properly considered the evidence in the record on the issue of whether defendant possessed the drugs for personal use. (Ibid.) As the trial court noted, the evidence showed that defendant possessed the heroin for purpose of sale, rather than for personal use. Furthermore, Officer Janzen testified that based on his experience and training, the packaging of the heroin, the money found on defendant’s person, and lack of drug paraphernalia on defendant, it was his opinion that defendant possessed those drugs for sale. Accordingly, there is substantial evidence to support the trial court’s finding that defendant did not possess the heroin 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 defendant is, as a matter of fact and law, eligible for Proposition 36 treatment. (Dove, at pp. 10-11.)
In addition, we are not persuaded by defendant’s assertion that the trial court’s reliance on Barasa and Glasper was improper. Defendant misunderstands the court’s reasons for citing those cases. The trial court relied upon those cases for the rule that, regardless of the jury’s verdicts, the court had the independent duty of deciding whether a defendant qualifies for Proposition 36.
Equally unavailing is defendant’s assertion that, under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), the jury’s acquittal on the possession for sale charge mandated a grant of Proposition 36 drug treatment and probation. Cunningham has no application to the instant case. Contrary to defendant’s assertion, Proposition 36 does not create a new statutory maximum of probation. Rather, section 1210.1 reduces the potential for punishment for certain crimes, and our Supreme Court has upheld that Apprendi does not apply to Proposition 36 for that reason. (In re Varnell, supra, 30 Cal.4th at p. 1141.) In fact, we held in Dove that because neither Apprendi nor Blakely applied the trial court could make a factual finding that the defendant did not possess or transport a controlled substance for personal use, for purposes of Proposition 36 sentencing, under a preponderance of the evidence standard. (Dove, supra, 124 Cal.App.4th at pp. 4, 11.) In other words, the trial court was “free to redetermine the personal use issue based on the preponderance of the evidence.” (Id. at p. 11.) We also noted that we continue “to be bound by our Supreme Court’s holding in Varnell that Proposition 36 reduces the sentence that would otherwise apply.” (Id. at p. 9) We further pointed out that even if we were to analyze the issue anew, we would reach the same conclusion. (Ibid.) We also stated that, under Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455, this court remains bound to Varnell, which has not been overruled. (Dove, at p. 9.)
We do not believe that Dove, 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 section 1210, but rather a trial court may decide that question by a preponderance of the evidence. Accordingly, we conclude the trial court properly found defendant ineligible for Proposition 36 treatment.
C. Sentencing on Count 3
Defendant lastly contends, and the People correctly concede, that the trial court should have stayed defendant’s sentence on count 3 (possession of heroin) pursuant to section 654, which proscribes double punishment. We also agree. Defendant’s conviction of both transporting and possessing heroin was proper. (People v. Sanders (1967) 250 Cal.App.2d 123, 134-135, disapproved on other grounds in People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4.) There was no evidence, however, that the possession preceded the transportation or extended beyond it. Defendant’s conduct violated two penal statutes, but his possession and transportation of heroin was an indivisible course of conduct with a single objective. Section 654 prohibits multiple sentences under that circumstance, even though the sentences are ordered to run concurrently. (Sanders, at p. 135.) The appropriate appellate procedure where improper multiple punishment has occurred is to eliminate the sentence imposed for the lesser offense and to allow the sentence for the greater offense to stand. (In re Wright (1967) 65 Cal.2d 650, 652-654.) Transporting heroin is the more serious of the two offenses and carries the greater punishment. Accordingly, sentence on count 3 (possession of heroin) should have been stayed.
III
DISPOSITION
The judgment is modified to stay the sentence on count 3 (possession of heroin). The trial court is directed to amend the abstract of judgment and forward a copy to the appropriate agencies. In all other respects, the judgment is affirmed.
We concur: GAUT, J., KING, J.