P. v. Yanes-Zavala

Filed 11/26/07 P. v. Yanes-Zavala CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following a jury trial, Heraclio Yanes-Zavala (appellant) was found guilty of transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a); count 1), possession of methamphetamine (id.,  11377, subd. (a); count 2), a lesser included offense of possession for sale, and possession of paraphernalia (id.,  11364; count 3). In a bifurcated proceeding, after appellant waived his right to a jury trial on the issue, the trial court found true that appellant had a prior serious felony conviction for violating Penal Code section 288, subdivision (a).^[1]( 667, subds. (c)-(j), 1170.12, subds. (a)-(e).)

The trial court refused appellants request for Proposition 36 drug treatment and sentenced appellant to the upper term of eight years in state prison on count 1 and the upper term of six years on count 2, the latter stayed pursuant to section 654.

On appeal, appellant argues that the upper term sentences imposed on counts 1 and 2 violated Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). He also claims that the trial court erred when it found him ineligible for Proposition 36 treatment due to an immigration hold. We disagree with both of his contentions.

FACTS

Officers stopped appellant in his car just after he had left a mobilehome in a trailer park on the morning of August 1, 2006. A search of the car revealed a clear plastic bag containing two separate plastic bags: one with 29.4 grams of methamphetamine and the other with 3.1 grams of methamphetamine and a glass smoking pipe. A third clear plastic bag containing 0.85 grams of methamphetamine was found wedged in the back of the front passenger seat. Appellant had $972 in cash on him.

A cell phone on the passenger side of the car rang continuously during the search. When Officer Uriel Pacheco answered the phone, the caller asked for Heraclio.

A search of the mobilehome and a shed in the surrounding lot revealed plastic grocery bags with pieces torn from them, a two-pound container labeled MSM which held a crystalline substance, and a half-used roll of plastic wrap. An officer testified that grocery bags and plastic wrap were commonly used to package controlled substances, and that MSM, or methylsulfonylmethane, was used to dilute drugs to increase their profitability. According to Sheriffs Detective Jeff Harbour, MSM is legitimately used for joint pain on horses, but there is no reason to use MSM to dilute a drug users own methamphetamine.

Officer Pacheco opined that the large amount of methamphetamine found in the car was possessed for purposes of sale. Detective Harbour opined, in response to a hypothetical question, that the methamphetamine was possessed for sale, based on the large quantity and the packaging material which was found. Detective Harbour testified that the nearly 30 grams of methamphetamine comprised approximately 300 dosage units. Detective Harbour opined that a gram of methamphetamine might cost $80, and a typical dose of methamphetamine consisted of a tenth of a gram, although a heavy user might tolerate two-and-a-half tenths of a gram. According to Detective Harbour, the presence of packaging, cut, and a cell phone, and the amount of the product and cash were all indicia of sales in drug cases.

Officer Clayton Madden opined that the methamphetamine was possessed for purposes of sale, based on the quantity of the drug and cash, the plastic wrap, the grocery bags, and the container of MSM. The presence of the pipe did not change his opinion, because it is not uncommon for a narcotic dealer to also be a user. According to Officer Madden, a user might utilize up to a gram of methamphetamine in a week.

Appellant testified in his own behalf. According to appellant, he was addicted to crystal methamphetamine, which was the cause of his separation from his wife and children. He claimed to have the cash from a job installing tile, and he did not have a bank account. He testified that he was consuming the one bag of methamphetamine in the car, he bought another for when he finished the first bag, and someone traded him the larger bag of methamphetamine for his help in installing an engine on a car. Appellant testified that the MSM in the shed was for a horse he once owned.

DISCUSSION

1. Did the upper term sentences imposed violate Cunningham?

The trial court imposed upper term sentences on counts 1 and 2. Relying on Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper terms based on factors not admitted by appellant or found by the jury to be true beyond a reasonable doubt. We find no Sixth Amendment error.

The People argue that appellant forfeited his claim of error arising under Cunningham because he failed to raise it at sentencing, which occurred in this case after Blakely and Apprendi were decided. But, at the time appellant was sentenced, People v. Black (2005) 35 Cal.4th 1238 (Black I), which held Blakely was inapplicable to the selection of the upper term, was the prevailing law. Black I was reversed on this point in Cunningham. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 871].) But, at the time of his sentencing, appellants objection to the upper term under Blakely would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Accordingly, appellant did not forfeit the claim he raises under Cunningham, and we address the merits of his contention.

The California Supreme Court recently reconsidered Black I in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), the court noted that Blakely explicitly recognized the legitimate role of judicial factfinding in indeterminate sentencing, in which the judge may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. [Citation.] (Black II, supra, at pp. 812-813.) Accordingly, Black II held that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.)

In Black II, the court reiterated that the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias determinate sentencing system. It concluded that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum for Sixth Amendment purposes. (Black II, supra,41 Cal.4th at p. 813, fn. omitted, citing People v. Osband (1996) 13 Cal.4th 622, 728.) [I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, at p. 816.)

In the instant case, appellants 1995 strike conviction for violating section 288, subdivision (a) made him eligible for the upper term. As noted in Black II, [t]he United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Black II, supra, 41 Cal.4th at p. 818.)

At sentencing, however, the trial court reviewed the probation report and identified only one factor in aggravation: that this crime did involve a large quantity of contraband, to wit, in excess of 33 grams of methamphetamine. We agree with appellant that the question whether the quantity of contraband possessed by appellant was large required jury determination. Under Cunningham, this is a factor that must be tried by the jury and found beyond a reasonable doubt. (Black II, supra, 41 Cal.4th at p. 809.)

We agree with respondent, nonetheless, that no Cunningham error occurred because, based on the fact of his prior strike conviction, appellant was eligible for the upper term sentence. As noted previously, the Supreme Court held in Black II that:

so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, 41 Cal.4th at p. 813.)

Appellant here waived a jury determination of the truth of the allegation that he had suffered a prior strike conviction. Also, of course, the fact of a prior conviction qualifies for an exception to the jury trial requirement of Cunningham. (Black II, supra, 41 Cal.4th at p. 818.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at p. 813.) Thus, facts established consistent with the Sixth Amendment rendered appellant eligible for the upper term.

Appellant contends that, because the trial court did not actually and expressly rely on his recidivism in selecting the upper term, this court cannot rely on that factor to find the absence of error. Absent further direction from the Supreme Court, however, we believe we are bound by the high courts opinion in BlackII, which bases its Sixth Amendment analysis solely on the question whether, under California law, the defendant was eligible for the upper term based on factors established by acceptable means. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellant also contends that his prior strike conviction could not be used to impose the upper term because of the dual use theory enunciated in People v. Kelley (1997) 52 Cal.App.4th 568, 581, and People v. Jardine (1981) 116 Cal.App.3d 907, 923-924, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 1158, 1167. (See also  1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) As noted in Black II, in selecting the upper term , the court may not consider any fact that is an essential element of the crime itself [citation] and may not consider a fact charged and found true as an enhancement unless it strikes the punishment for that enhancement. [Citations.] (Black II, supra, 41 Cal.4th at pp. 808-809.) [T]he three strikes provisions[, however,] articulate an alternative sentencing scheme, not a sentencing enhancement. (People v. Cressy (1996) 47 Cal.App.4th 981, 991.) According to the express language of the three strikes law, its provisions apply in addition to any other enhancements or punishment provisions which may apply, ( 1170.12, subd. (c)(1)), and the Supreme Court has construed this language as referring to the term that would be imposed in the absence of the Three Strikes law. (People v. Nguyen (1999) 21 Cal.4th 197, 205.)

We therefore reject appellants contention that his section 288 conviction did not make him eligible for the upper term and that Sixth Amendment error occurred.

2. Did the trial court err when it denied appellant Proposition 36 treatment?

Appellant contends that the trial court erred when it denied him treatment under Proposition 36 because there was no substantial likelihood of his deportation. We disagree.

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, took effect on July 1, 2001. The act added numerous provisions to the Penal Code, including section 1210.1, which provides, in relevant part, that, subject to certain exceptions, any person convicted of a nonviolent drug possession offense shall receive probation. ( 1210.1, subd. (a).) Section 1210.1, subdivision (b), in turn, sets out five exceptions for otherwise eligible defendants, none at issue here: (1) conviction of a prior strike offense within five years; (2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; (3) firearm involvement; (4) refusal of drug treatment; and (5) two prior failures in Proposition 36 treatment programs.

Illegal alien status is a legitimate factor for consideration but does not categorically preclude a grant of probation. (People v. Sanchez (1987) 190 Cal.App.3d 224, 231.) A trial court is free to exercise its discretion to deny probation where the defendant faces a substantial likelihood of imminent deportation, such that his probation cannot effectively be conditioned on completion of a drug treatment program . (People v. Espinoza (2003) 107 Cal.App.4th 1069, 1076.) If a defendant is deported, probation is ineffective. (Ibid.; see also In re Manuel P. (1989) 215 Cal.App.3d 48, 81 (dis. opn. of Wiener, J.).)

Appellants probation report, under the designation for citizenship, states, Mexico (Country) (USICE Hold) and that he arrived in the United States in 1993. The report also states that appellant was Removed from US for life on October 10, 2003, but gives no other information regarding any removal offense or the court, if any, that imposed the penalty.

Prior to sentencing, appellant filed a statement of eligibility for Proposition 36 drug treatment, stating that he was convicted of nonviolent drug possession offenses, making him eligible for treatment, and that he did not fall within any of the classes of defendants deemed ineligible for treatment under the statute.

The trial court found that, because there was an immigration hold on appellant, he was not eligible for Proposition 36 treatment. The court later revisited the issue and found that appellant was also not eligible for Proposition 36 treatment because by a preponderance of the evidence, this amount of narcotics was possessed for sale.

In People v. Espinoza, the First District Court of Appeal concluded that a trial court may deny probation under Proposition 36 to an illegal alien who is subject to immediate deportation, based on the fact that the defendant could not comply with the terms of probation in such circumstances. (People v. Espinoza, supra, 107 Cal.App.4th at pp. 1072-1076.) [A] defendants status as an illegal alien is highly relevant to the issue of whether to grant probation because it bears directly on whether the defendant can comply with the terms of probation. (Id. at p. 1074, citing People v. Sanchez, supra, 190 Cal.App.3d at pp. 230-231.) Espinoza thus stands for the proposition that a court may impose a state prison sentence in those instances where a defendant would otherwise be eligible for probation under Proposition 36, based on the likelihood of deportation.

In Espinoza, the defendant pleaded no contest to a nonviolent drug possession offense. The trial court sentenced him to prison and he appealed. The appellate court found that the defendant was properly excluded from Proposition 36 treatment because he was an illegal alien subject to deportation. The presentence report showed that the defendant had numerous convictions for alcohol-related offenses and that he had twice been paroled to the Immigration and Naturalization Service (INS) and deported to Mexico. Both times he illegally reentered the United States in violation of his parole conditions. Although the INS had been notified of the defendants prior conviction, it had not placed a hold on him as of the date he was sentenced in the current case. (People v. Espinoza, supra, 107 Cal.App.4th at pp. 1071-1072.) The court in Espinoza found that the defendants immigration status and criminal history make it highly unlikely that he could complete any court-ordered drug treatment before being deported. (Id. at p. 1073.) Although the defendant argued his current conviction might not make him deportable, the appellate court disagreed and found there was ample reason to assume that he would be deported again.

He is admittedly here illegally. He has twice previously been deported after committing crimes, and he continued to violate this countrys laws after twice illegally reentering this country following deportation. By any measure, defendant is a prime candidate for deportation. (Id. at p. 1075, fn. omitted.)

In People v. Muldrow (2006) 144 Cal.App.4th 1038, on which appellant relies, the defendant was convicted of one count of possession of methamphetamine. The probation report stated that, at the time the drugs were found on the defendant, he was wanted on a parole hold and expected to return to custody for eight months on the parole violation. (Id. at p. 1041.) The trial court denied the defendant Proposition 36 treatment, finding that he was not available because he was subject to a parole hold. (Id. at p. 1042.)

The People asked this court to apply the reasoning of Espinoza to the defendants case and to find that Proposition 36 treatment is precluded when a defendant faces a substantial likelihood that parole will be revoked and the defendant will be returned to prison. We declined, finding that the substantial likelihood test in Espinoza applicable to illegal aliens was not equally applicable to parolees. We further noted that the trial court accepted at face value the probation officers conclusion that there was a parole hold for the defendant and that it was expected that he would be returned to prison, and we noted that there was the possibility that the defendants parole would be discretionarily reinstated to permit him to take advantage of Proposition 36 programs. (People v. Muldrow, supra, 144 Cal.App.4th at p. 1047.)

Appellant acknowledges the holding in Espinoza, but states his case is more like Muldrow in that there was no evidence presented that appellant was subject to imminent deportation. We disagree.

Appellants situation is more akin to Espinoza than it is to Muldrow. The evidence is clear that appellant was subject to deportation. His probation report stated that appellant was Removed from US for life in October of 2003, that he was a citizen of Mexico, and that he had a USICE Hold placed on him. At sentencing, defense counsel acknowledged that appellant had an immigration hold on him.

Because of this hold, it is not unreasonable for the trial court to assume that Immigration and Customs Enforcement will act to deport appellant in furtherance of its federal statutory duties. (People v. Espinoza, supra, 107 Cal.App.4th at p. 1075, fn. 5.) [O]nce a nonviolent drug possession offender has been deported from the United States, the premises, requirements, and objectives of Proposition 36 can no longer be satisfied. (Id. at p. 1076.) Therefore, the trial court was not precluded from exercising its discretion to deny probation.

Respondent argues in the alternative that appellant was also ineligible for Proposition 36 treatment because he possessed the methamphetamine for sale. But, since we have found that the trial court correctly found appellant ineligible because he was subject to deportation, we need not address this issue further.

DISPOSITION

The conviction and sentence are affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

VARTABEDIAN, Acting P.J.

_______________________________

CORNELL, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1]All further statutory references are to the Penal Code unless otherwise stated.