P. v. Magee

Filed 8/22/06 P. v. Magee CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Teri Schwartz, Judge. Affirmed.

Alan Fenster, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, and Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Excell Magee was convicted, following a court trial, of one count of possession of a controlled substance in violation of Health and Safety Code section 11350. The court found that appellant was not eligible for probation pursuant to Penal Code[1] section 1210.1 ("Proposition 36") and sentenced him to three years in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in finding that he was not eligible for probation.[2] We affirm the judgment of conviction.

Facts[3]

On March 2, 2004, Los Angeles County Sheriff's Detective Robert Horner and other sheriff's deputies executed a search warrant at appellant's house in Duarte. The search uncovered a total of $9,188 in cash from four locations in appellant's bedroom. In a cabinet in the laundry room, Detective Horner found a piece of cocaine base and a razor in a towel. He also found a plastic baggie containing cocaine base in a sock. Next to the sock was a promissory note made out to appellant. In a storage hatch of a motor home parked just outside the laundry room, Detective Horner found a paper bag containing cocaine base. The cocaine in the laundry room weighed a total of 25.7 grams and the cocaine in the motor home weighed 18.7 grams.

Detective Horner did not find any paraphernalia for using the cocaine, or any packaging material. He believed that the amount of cocaine was well in excess of what a person might possess for personal use. He estimated the street value of cocaine at $1000 per ounce or $100 per gram. Detective Horner testified that the average user has about .2 grams of cocaine when arrested. He opined that appellant's appearance did not match that of a chronic cocaine user, who is thin and has burn marks on or near his fingers. The detective opined that the cocaine was possessed for sale.

Appellant testified that the cocaine inside the house was his and was for personal use. There was a glass pipe in the house for smoking cocaine. The cocaine in the motor home was not his and he did not know where it came from. He smoked about $200 worth at a time, then went for a week or two without smoking cocaine. He did not sell drugs.

Appellant also presented the testimony of Robert Timmins, a specialist in treating people with addictions. Timmins opined that appellant had a long term chronic addiction problem. He had referred appellant to a treatment facility. In Timmins's experience, a few cocaine addicts do gain weight. He did not believe that it would be unusual for a binge user of cocaine to use an ounce in two to three days. Timmins opined that the cocaine found in appellant's house was for personal use.

In rebuttal, Detective Horner testified that appellant told him that the cocaine found in the motor home was his.

Discussion

Appellant was charged with possession for sale of cocaine base. He waived his right to a jury trial and agreed that the court would decide the case on the basis of the preliminary hearing transcript. The court found appellant guilty of the offense of possession of cocaine base in violation of Health and Safety Code section 11350, and amended the information to reflect that verdict. The court then found that it was more likely than not that the possession was for purposes of sale and that appellant was therefore not eligible for probation and treatment pursuant to section 1210.1.

Section 1210.1, subdivision (a), provides in pertinent 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. . . . A court may not impose incarceration as an additional condition of probation."

Here. appellant was convicted of a drug possession offense. Section 1210 defines which drug possession offenses are nonviolent. That section 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.)

There is no offense in the Penal Code entitled "possession for personal use." Under the Penal Code, a defendant may be convicted of possession of a controlled substance in violation of section 11350 or possession for sale of a controlled substance in violation of section 11351. Possession for sale is specifically excluded from the term nonviolent drug offense. Thus, when a defendant is convicted of possession in violation of section 11350, and is otherwise eligible for probation under Proposition 36, a determination must be made of the defendant's purpose in possessing the controlled substance. The question presented on this appeal is how such a determination is made.

Appellant contends that the trier of fact's verdict acquitting him of possession for sale and convicting him of simple possession constitutes a finding that he possessed the controlled substance for personal use. Respondent contends that personal use is a sentencing factor, and its existence is determined by the trial court, by a preponderance of the evidence.

A conviction for simple possession of a controlled substance in violation of Health and Safety Code section 11350 does not require proof of a defendant's purpose for possession. Thus, a jury's guilty verdict does not include a finding that the defendant possessed the controlled substance for personal use. A separate finding is required.

We see no requirement for the jury to make such a finding. A finding that a defendant possessed a controlled substance for personal use lightens the punishment for that crime. 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.)

The personal use requirement of section 1210 is thus a sentencing factor when a defendant is convicted of possession of a controlled substance in violation of section 11350 and is otherwise eligible for probation under section 1201.1. The existence of this factor is determined by the trial court by a preponderance of the evidence. (See People v. Barasa (2002) 103 Cal.App.4th 287; People v. Glasper (2003) 113 Cal.App.4th 1104; People v. Dove (2004) 124 Cal.App.4th 1.)[4]

We see no significance to the fact that the trier of fact acquitted appellant of the possession for sale charge. It merely meant that the trier of fact found that there was not evidence proving beyond a reasonable doubt that appellant possessed the cocaine for sale. (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. 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 burden of proof for sentencing factors is lower than for convictions or enhancements, and trial courts routinely find true sentencing factors that are related to allegations which have been rejected by juries. (See, e.g., People v. Lewis (1991) 229 Cal.App.3d 259, 264-265 [jury found weapon use allegation not true; court found weapon use true for purpose of sentencing]; People v. Reyes (1987) 195 Cal.App.3d 957, 964-965 [jury found great bodily injury allegation not true; court used victim's injury as a sentencing factor; People v. Lopez (1982) 131 Cal.App.3d 565, 574 [jury found firearm use allegation not true; court found firearm use true for purpose of sentencing].)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

TURNER, P. J.

MOSK, J., Concurring

I concur.

The resolution of the application of Penal Code section 1210.1, subdivision (a) (part of Proposition 36) in this case is difficult. The problem is that there is no crime of â€