P. v. Moshkovskiy
A jury found that the prosecution had not proved beyond a reasonable doubt that defendant Vadim Moshkovskiy possessed methamphetamine for sale; thus, the jury convicted him of the lesser included offense of simple possession of methamphetamine. At sentencing, the trial court, applying the lesser standard of proof by a preponderance of the evidence, found that defendants crime was more than simple possession. Therefore, the court concluded defendant was ineligible for Proposition 36 probation. Instead, the court suspended imposition of sentence and placed him on formal probation with terms that required him to serve 180 days in county jail and participate in a drug rehabilitation program.
On appeal, defendant contends the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution, by denying him Proposition 36 probation based on a fact not proved to a jury beyond a reasonable doubt. He also claims the evidence does not support the courts finding that he possessed methamphetamine for sale. Court shall affirm the judgment (order of probation).
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