P. v. Wade
Filed 2/5/13 P. v. Wade CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND JAPAUL WADE,
Defendant and Appellant.
B240588
(Los Angeles
County Super.
Ct.
No. BA389493)
APPEAL from
a judgment of the Superior Court
of
County, Barbara Johnson, Judge. Affirmed and remanded with directions.
A. William
Bartz, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and Jonthan M. Krauss, Deputy Attorney General, for
Plaintiff and Respondent.
________________________________
Defendant
and appellant Raymond Japaul Wade was convicted by jury of possession of
cocaine in violation of Health & Safety Code section 11350, subdivision
(a), a lesser but necessarily included offense of possession of cocaine base
for the purpose of sale. The trial court
sentenced defendant to state prison
for the low term of 16 months, to be served in the county jail, after finding
defendant unsuitable for Proposition 36 probation.
In his
timely appeal from the judgment, defendant contends he was statutorily eligible
for Proposition 36 probation, which is mandatory in the absence of a
disqualifying factor. The Attorney
General concedes that defendant is correct, but the trial court misunderstood
its discretion to determine that defendant was ineligible because the current
offense involved possession of cocaine for sale, notwithstanding the jury’s
verdict.
We agree
with the parties that defendant’s criminal history did not render him
unsuitable for Proposition 36 probation.
However, the record supports the Attorney General’s position that the
trial court may have misunderstood its discretion to make a factual finding by
a preponderance of the evidence that defendant was ineligible for Proposition
36 probation because he possessed cocaine for the purpose of sale,
notwithstanding the jury’s verdict that the offense was possession of
cocaine. Accordingly, we affirm the
judgment but remand to allow the trial court to determine whether the current
offense disqualified defendant from Proposition 36 probation on the ground that
his offense involved the possession of cocaine for the purpose of sale.
FACTS
On October 1, 2011, defendant was
observed talking to several people in front of San Julian Park. At the direction of Los Angeles Police
Department Officer Dion Joseph, defendant was taken into custody by two other
officers. Defendant was transported to
the police station, where a body cavity search of his rectum lead to the
discovery of rocks of cocaine base weighing 6.17 grams. Officer Joseph opined that defendant
possessed the cocaine for the purpose of sale, based upon its street value, the
number of doses contained, and the absence of drug paraphernalia on defendant’s
person.
DISCUSSION
A trial
court must grant Proposition 36 probation to an eligible defendant who commits
a nonviolent drug possession offense. Defendant argues he was statutorily eligible
for Proposition 36 probation, and the court erred in finding him unsuitable and
committing him to state prison. We agree
the trial court lacked the power to deny defendant Proposition 36 probation on
the ground he was unsuitable. However,
there is an unresolved issue that requires a remand to the trial court to
determine whether defendant committed a nonviolent drug possession offense, and
if so, Proposition 36 probation must be granted.
“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
v. Canty (2004) 32 Cal.4th 1266, 1272-1273, fn. omitted.) “Proposition
alternative sentencing scheme for those convicted of certain narcotics
offenses. In effect, it acts as an
exception to the punishment specified in an individual narcotics offense.†(In re
Varnell (2003) 30 Cal.4th 1132, 1136.)
“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 [Penal Code s]ection
4573.6 or 4573.8.†(Pen. Code, §
1210, subd. (a).)
There are
five classes of defendants who statutorily unsuitable for Proposition 36
probation eligibility following conviction of a nonviolent drug possession
offense. (Pen. Code, § 1210.1, subd.
(b).) Defendant contends, and the
Attorney General correctly agrees, that defendant does not fall into any of the
five categories that would render him automatically ineligible for Proposition
36 probation.
Despite
defendant’s statutory eligibility, the Attorney General argues that the matter
should be remanded to allow the trial court to determine if defendant committed
a nonviolent drug possession offense.
The Attorney General reasons that defendant was charged with possession
of cocaine base for the purpose of sale, the record contains substantial evidence
of possession for the purpose of sale, and although the jury acquitted him of
that offense and found him guilty of the lesser offense of possession of
cocaine, the court retained the power to determine, by a preponderance of the
evidence, that defendant’s conduct did not involve possession of cocaine for
personal use. We agree.
“
acquittal of a charge or not true finding of a sentencing allegation generally
does not bind the trial court from redetermining the personal use issue for
Proposition 36 purposes based on the preponderance of the evidence standard
because an acquittal or not true finding merely means that the jury was not
convinced beyond a reasonable doubt on such issue. ([U.S.
v.] Watts [(1997)] 519
U.S. [148,] 157; [People
v.] Dove [(2004)]
124 Cal.App.4th [1,] 11 (Dove).) Further such determination may be implied
from the fact a prison sentence is imposed. (Dove[
[287,] 291–295.)†(People v. Harris (2009) 171 Cal.App.4th 1488, 1498 (
Thus, the
law permits the trial court to find by a preponderance of the evidence that a
controlled substance was not possessed for personal use, even where the jury
returns a verdict to that effect. In
order to address the Attorney General’s contention, we look to proceedings at
sentencing to determine if the trial court understood and exercised its
authority to make the necessary finding that defendant committed a nonviolent
drug possession offense as defined in Proposition 36.
As noted,
defendant was acquitted of possession of cocaine base for the purpose of sale
but convicted of possession of cocaine.
At the probation and sentence hearing, the trial court found defendant
in violation of probation in two prior cases—convictions of child endangering (Pen.
Code, § 273a) and possession of cocaine.
Defense counsel told the court defendant was eligible for Proposition 36
probation. The prosecutor noted
defendant’s “dismal performance on probation†and observed that “although he
was only convicted of the lesser included, he was possessing for sales.â€
be served in county jail.
After
further discussion regarding defendant’s probation cases, the trial court
stated, “I don’t think he’s—he may be eligible for Proposition 36, but I don’t
think he’s suitable.†The court added,
“I think that we can have our opinions as to whether or not the person
was—whether or not Mr. Wade possessed the drugs for sale, but the matter of fact
was that the jury found that he didn’t possess it for sale, and we have to
abide by their ruling.â€
After
additional discussion of defendant’s record, the trial court repeated, “But I
think that the defendant is not suitable for Proposition 36.†Defense counsel told the court defendant
would benefit from Proposition 36 probation, but the court was unmoved. Defendant was sentenced to state prison for
the low term of 16 months, to be served in the county jail.
The trial
court’s statement regarding whether defendant possessed the cocaine for sale—“we
can have our opinions as to . . . whether or not Mr. Wade possessed the drugs
for saleâ€â€”is ambiguous and is certainly susceptible to the interpretation that
the court believed defendant did not possess the cocaine for personal use. The court’s conclusion “that the jury found
that he didn’t possess it for sale, and we have to abide by their ruling,†is
inconsistent with case law recognizing the court’s power to independently
determine the purpose of possession of a controlled substance, even where the
jury rejects a possession for sale charge in favor of a conviction of simple
possession. (Harris, supra, 171
Cal.App.4th at pp. 1497-1498; Dove, supra, 124 Cal.App.4th at p. 11.) Given the disapproving tone of the court’s
review of defendant’s record, and the mistaken belief that the jury’s verdict
conclusively resolved the issue of whether defendant committed a nonviolent
drug possession offense, the proper remedy is to remand to the trial court to
determine whether defendant possessed cocaine for personal use or for the
purpose of sale.
DISPOSITION
The
judgment of conviction is affirmed. The
cause is remanded to the trial court for its determination of the purpose for
which defendant possessed the cocaine.
If the trial court concludes the cocaine was possessed for personal use,
it shall place defendant on Proposition 36 probation. If the trial court finds by a preponderance
of the evidence that the cocaine was possessed for purpose of sale, the
previously imposed state prison sentence shall stand.
KRIEGLER,
J.
We concur:
TURNER,
P. J.
ARMSTRONG,
J.
on the prosecutor’s express comment that defendant possessed the cocaine for
sale, despite the jury verdict, we reject defendant’s argument that the
prosecution waived the issue of remanding the cause to the trial court.
