P. v.
Filed 7/11/13 P. v. Walker CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RAYMOND JEROME WALKER,
Defendant and
Appellant.
H037230
(Santa Clara
County
Super. Ct.
No. C1080058)
Defendant
Raymond Jerome Walker was sentenced to prison after a jury found him guilty of
simple possession of cocaine base and
transportation of cocaine base. On
appeal he contends that the trial court erred in denying Proposition 36
treatment based upon a refusal to find that defendant did not possess the
cocaine for personal use. Defendant
contends in effect that such a finding was compelled by his acquittal on
charges of possession for sale. We
reject the contention, and will affirm.
Background
On April 4, 2010, defendant drove his car
into a ditch and was taken to a hospital by a paramedic. He denied to the paramedic that he had been
using drugs or alcohol. However his
“mental status†appeared “altered†and he was “act[ing] very bizarrely,†including
talking constantly to himself in the ambulance.
At the hospital, while defendant was being prepared for
surgery, a plastic bag containing a number of small white spheres was observed
protruding from his rectum. This was
retrieved and delivered to law
enforcement officials. Also
retrieved was a scorched glass pipe.
The bag was
found to contain 24 white objects of similar size and appearance. A criminalist tested two of them, and found
that they consisted of .14 and .15 grams, respectively, of rock cocaine. Testifying as an expert, a police officer
opined that defendant had possessed the cocaine base for sale because it was a
relatively large quantity and the rocks were individually wrapped. On cross-examination,
he acknowledged that a heavy user might purchase such a quantity for his own
use, and that he might buy it individually wrapped if that was what the dealer
had for sale. However a dealer would
generally make more money—and inferentially a buyer would pay more—for “smaller
chunks†than for cocaine sold “in bulk.â€
He also acknowledged that a dealer generally has additional accessories
of sale—such as scales, cell phones, ledgers, and cash—whereas defendant was
found with only cocaine and a pipe. He
also acknowledged that he had never bought cocaine from a dealer who had, in
his presence, “pulled it out of their bottom.â€
The defense
presented evidence that defendant had recently relapsed from drug abstention
and had been observed smoking a crack pipe, or under the apparent influence of
drugs, on several occasions over the two or three days preceding the discovery
of cocaine base on his person.
Defendant
was charged with possession of cocaine for sale (Health & Saf. Code,
§ 11351.5) and transportation or sale of a controlled substance (Health
& Saf. Code, § 11352, subd. (a)).
The jury found him not guilty of the first charge, but guilty of the
lesser offense of simple possession of cocaine base, and guilty of the second
charge. The jury also sustained an
allegation that defendant had a prior conviction for a violation of Health and
Safety Code section 11352.
At
sentencing, defendant addressed the court, indicating that he only possessed
the cocaine for his own use and was not “transporting [it] for anybody.†Defense counsel argued that he “qualifies for
Prop 36 based on the jury’s verdict.â€
The prosecutor countered that, under two cited cases, it was “clearly
within the Court’s . . . discretion,†notwithstanding the verdict, “to determine
eligibility for Prop 36.†(See
1104 (Glasper); People v. Barasa (2002) 103 Cal.App.4th 287 (Barasa).)
The court
rejected the defense position, stating, “I do not find that you are eligible
for Prop 36. I think the
And frankly, the fact that a jury could find that 26—I believe it was 25
individually wrapped rocks of cocaine was not possession for sale is a surprise
to me. I’ve never seen such a huge
amount not being possessed for sale.
[¶] But I—and I do find that it
was not an amount that was likely to be for personal use. In the Glasper
case, there were only 14 individual rocks that the Court found were not for
personal use.â€
The court
imposed a sentence of seven years in prison.
Defendant filed this timely appeal.
Discussion
The
ultimate question is whether defendant was entitled to diversion under Penal
Code sections 1210 and 1210.1, which were adopted by initiative in 2001 as part
of Proposition 36. They provide that,
with certain exceptions not relevant here, “any person convicted of a
nonviolent drug possession offense shall receive probation,†conditioned on
“participation in and completion of an appropriate drug treatment
program.†(Pen. Code, § 1210.1,
subd. (a).) “[N]onviolent drug possession offenseâ€
includes “unlawful personal use, possession for personal use, or transportation
for personal use of any controlled substance,†but does not include “possession
for sale.†(Pen. Code, § 1210, subd.
(a).)
The court
below found that defendant possessed the cocaine found on his person for sale
and not for personal use. Defendant
contends that the court could not properly make such a finding after the jury
acquitted him of possession for sale. As
defendant puts it, “the sentencing court could not have found that appellant
possessed the cocaine for sale because the jury had found that he did not
possess the cocaine for sale.†But the
jury made no such finding. Its verdict
acquitting defendant of possession for sale did not import an affirmative
determination that he “did not possess the cocaine for sale.†Rather it determined only that the
prosecution had failed to prove
beyond a reasonable doubt that
defendant did possess the cocaine for
sale. As the jury was instructed, its
task was to determine whether the prosecution had proven the elements of the
offense beyond a reasonable doubt. These included the element that defendant
“intended to sell†the cocaine he possessed.
The verdict establishes only that the prosecution failed to prove this
element by the demanding reasonable-doubt standard. (Cf. People
v. Harris (2009) 171 Cal.App.4th 1488, 1491, 1494 [jury “specifically
found†that cocaine was transported for personal use].)
To
establish eligibility for Proposition 36 diversion, it was defendant’s burden to establish by
a preponderance of the evidence that he did not possess the cocaine for sale, i.e., that he possessed it for
personal use. This is at any rate is the
effect of several decisions that have previously addressed these questions. The earliest of these is Barasa, supra, 103
Cal.App.4th 287, where the defendant had pleaded guilty to a charge, as
relevant here, of transporting controlled substances. On appeal he contended that he was entitled
to Proposition 36 diversion with respect to this charge unless the prosecution
proved that the transportation was not for personal use. (Id.
at p. 292.) The court understood this
argument to rest on an implicit interpretation of the statute making it the
state’s burden to prove ineligibility for diversion. (Ibid.) The court rejected this interpretation,
applying the general rule 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.†’ †(Id.
at p. 296, quoting Tusher v. Gabrielsen
(1998) 68 Cal.App.4th 131, 144-145, quoting Evid. Code, § 500.) To complete the implicit syllogism, it is the
defendant who asserts a “claim for relief†by seeking probation under
Proposition 36; therefore it is the defendant’s burden to establish his
eligibility.
In
resembling the present one. The three
defendants there were charged with transporting cocaine base and possessing it
for sale. One of them was entirely
acquitted of the latter charge, while the other two were found guilty of simple
possession. Two of the defendants
challenged the trial court’s finding that they were ineligible for diversion
under Proposition 36. (
possession for sale precluded a determination that they had possessed the
substance for other-than-personal use. (
One of them argued that this verdict constituted a
“ ‘finding’ †by the jury “that she had not possessed cocaine for
anything other than ‘straight’ possession.â€
(Id. at p. 1113.) The trial court found otherwise, based
primarily on the number of “rocks†possessed by the defendants, i.e., 14. (Id.
at pp. 1113, 1114.) This court
explicitly adopted the reasoning of Barasa
in concluding that the defendant bears the burden of demonstrating facts making
him eligible under Proposition 36, and that he does not necessarily carry that
burden merely by securing an acquittal on a charge of possession or
transportation for sale. (
In
10-11 (Dove), the court followed
that the appropriate standard of
proof was a preponderance of the evidence.
The court went on to conclude, logically enough, that “the 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. Precisely because Apprendi [v. New Jersey
(2000) 530 U.S. 466] and Blakely [
not apply, the trial court was free to redetermine the personal use issue based
on the preponderance of the evidence.â€
Defendant’s
attempts to escape the effect of these cases are unavailing. He proposes to distinguish
there had entered a guilty plea including a Harvey
waiver (People v. Harvey (1979) 25
Cal.3d 754), which permitted the court to consider the facts underlying certain
dismissed charges. We are relying on the
case, however, only for its allocation of the burden of proof on the question
of Proposition 36 eligibility. Defendant
does not appear to take issue with the rule of law announced by the case on
that subject. The factual distinction he
points to has no apparent bearing on the applicability of that rule.
Defendant
acknowledges that the facts in Glasper
are “somewhat more similar to this case.â€
Parsing them closely, however, he concludes that they might have been
interpreted in a way that reconciled the court’s finding that the drugs were
being transported for sale with the jury’s supposed finding that they were not
possessed for sale. We question the
logical coherence of this highly creative effort but we need not analyze it in
detail because there is no suggestion that the court there engaged in any such
microscopic analysis of the record.
Again, we rely on the case for the rule it adopted, not its application
of that rule to the particular facts before it.
The rule is that a defendant seeking Proposition 36 diversion bears the
burden of establishing by a preponderance of evidence the existence of facts
warranting such diversion. The
prosecution’s failure to carry its considerably heavier burden on an underlying
charge does not preclude, logically or legally, a finding by the trial court
that the defendant has failed to carry the burden imposed on him by these
cases.
Indeed,
despite his early references to a jury “finding†that he did not possess
methamphetamine for sale, defendant ultimately acknowledges the true nature of
the defense argument and the jury’s adoption of that argument: “Appellant . . . presented a
defense that he was a former cocaine addict who had relapsed and that the 24
rocks could have been possessed for
personal use. In acquitting appellant of possession for sale, the jury must
have concluded that appellant’s defense was correct, or that there was a
correct, despite the amount of cocaine possessed.†(Italics added.) To establish an entitlement to diversion, it
was not enough that defendant show he “could have†possessed 24 rocks for
personal use or that this was a “reasonable possibility.†He had to show by a
fact possessed the rocks for personal use.
He failed to persuade the trial court of that proposition, and therefore
the only way to obtain reversal would be to show that possession for personal
use was established as a matter of law.
Defendant has not attempted such a showing and it does not appear that
the present record would afford any basis to do so.
Disposition
The
judgment is affirmed.
name="_ftn1" title=""> [1] The two referenced decisions were cited in
all of the above cases in support of arguments that a decision to withhold
diversion under Proposition 36 implicates the federal right to trial by jury,
so as to require that a jury find any disqualifying fact beyond a reasonable
doubt—something the juries had refused to do in Glasper and Dove, as the
jury did here. (See Dove, supra, 124 Cal.App.4th at pp. 8-9, discussing
[rejecting argument in similar context that federal jury right is
implicated].) Defendant raises no such
argument here.
