Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 03F10251, 04F11347, 06F01878
SIMS, Acting P. J.
A jury convicted defendant Malcolm Augustus Johnson of two counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and single counts of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364). Defendant admitted an on-bail allegation and two prior convictions for transportation of methamphetamine for personal use. The court struck one of the prior conviction allegations, and imposed a term of eight years and eight months in state prison.
The court also imposed two concurrent three-year prison terms for probation violations in two unrelated cases.
On appeal, defendant contends: 1) the court’s finding that he possessed and transported the methamphetamine for sale rather than personal use violated due process, the rule of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), and the prohibition against double jeopardy; 2) at the Proposition 36 hearing, the court improperly placed on defendant the burden of proving the methamphetamine was for personal use; 3) the court did not act as a neutral magistrate in denying Proposition 36 probation; 4) the denial of Proposition 36 probation was not supported by substantial evidence and relied on improper expert testimony; and 5) the court should have stayed sentence for possession of drug paraphernalia pursuant to Penal Code section 654 (undesignated section references are to the Penal Code). We shall affirm.
BACKGROUND
On March 1, 2006, Sacramento County Sherriff’s Detective Kevin Reali and other officers went to defendant’s residence, where he was found lying on a baggie of 1.62 grams of methamphetamine. A search of the residence also revealed a functional digital scale, a narcotics pipe, and two notebooks containing pay/owe sheets. Defendant’s wallet contained $258 cash: a $100 bill, one $50 bill, four $20 bills, one $5 bill, and twenty-three $1 dollar bills.
Searching defendant’s car, officers found methylsulfonylmethane (MSM), an additive commonly added to methamphetamine to increase the product. The methamphetamine was not analyzed to see whether it contained any MSM.
On November 12, 2006, Sacramento County Sherriff’s Sergeant John Zwolinski pulled over defendant’s car for running a stop sign. Sergeant Zwolinski searched the car and found two cellular phones, two black plastic scales, and a small CD case containing syringes, spoons, numerous small plastic baggies, and two baggies of methamphetamine.
The baggies with methamphetamine were found in a false bottom of a cigarette box in which cigarettes had been glued to the top. On the outside of the two baggies was written the word “ball” in black pen. They contained respectively 3.72 grams and 2.97 grams of methamphetamine. The pipes were like those used for smoking methamphetamine, and the spoons, scales, and pipes contained methamphetamine residue. Sergeant Zwolinski also found a bottle of prenatal dietary supplement, which defendant claimed was vitamin B-12, which he used when “jones’ing.” Appellant had $286 in cash: twelve $20 bills, three $10 bills, one $5 bill, and eleven $1 dollar bills.
Defendant gave a Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] waiver and told Sergeant Zwolinski he was not a drug dealer, but he admitted selling methamphetamine from time to time. He injected methamphetamine, which he last used two days ago. Defendant used about a gram each time, three to four times a week, and denied knowledge of the methamphetamine in his car.
Over defendant’s objection, Detective Reali testified as an expert regarding possession of methamphetamine for sale. He testified that .1 grams of methamphetamine was a useable dose, but most consumers will need a greater dose. A typical user will carry one to two grams on their person, and someone with sufficient tolerance could use one-and-a-half to two grams. The detective admitted some addicts may use scales to avoid accidental overdose. While the 1.62 grams found on defendant in his residence was consistent with personal use and not a large amount of methamphetamine, the pay/owe sheets demonstrated possession for the purpose of sale. Based on a hypothetical regarding the drugs found in the November 12 stop, Deputy Reali concluded that they were also used for sale.
Defendant, testifying, said he had been using drugs for the last 31 years, since he was 14. At the time of his arrest he was using two to four grams of methamphetamine a day, if he could afford it. He was relatively clean on March 1, 2006, so a half a gram would have lasted him the day.
Defendant said the pay/owe sheets were a shopping list and list of people to whom he owed money, both unrelated to methamphetamine. He intended to use rather than sell the methamphetamine found in both searches. Defendant also denied making any of the statements to Sergeant Zwolinski.
Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378) in counts 1 and 2 along with transportation of methamphetamine in count 3, and possession of drug paraphernalia in count 4. The jury convicted defendant on counts 3 and 4, acquitted him of counts 1 and 2, but convicted him in counts 1 and 2 of the lesser included offenses of possession of methamphetamine.
At sentencing, the court determined that in order to be eligible for Proposition 36 probation defendant had the burden of proving by a preponderance of the evidence his possession and transportation offenses were for personal use and not for sale. Defendant objected to placing the burden of proof on him, and requested Proposition 36 probation on the basis of the jury’s acquittal on the possession for sale charges. The court disagreed, finding defendant did not possess the methamphetamine for personal use, and was therefore ineligible for Proposition 36 probation.
DISCUSSION
I
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, added section 1210.1 to the Penal Code, which requires the trial court to grant probation with a drug treatment condition to anyone convicted of a “nonviolent drug possession offense” unless disqualified by the provisions of section 1210.1, subdivision (b). (§ 1210.1, subd. (a).) Section 1210, subdivision (a), defines a “nonviolent drug possession offense” as “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.”
Here, defendant was not disqualified from Proposition 36 probation by any of the provisions of section 1210.1, subdivision (b). Instead, the trial court found him ineligible because it found defendant’s possession and transportation of methamphetamine was not for personal use.
Defendant contends his acquittal on charges of possession of methamphetamine for sale with respect to both incidents precluded the court from finding he was ineligible for Proposition 36 probation because he possessed and transported the drugs for sale rather than personal use. Specifically, he argues the court’s use of acquitted conduct to deny Proposition 36 probation violated due process generally, the due process and jury trial rights applied to California sentencing law in Cunningham, and the court also violated due process by placing on him the burden of proving his possession and transportation offenses were for personal use. We disagree.
A.
In People v. Takencareof (1981) 119 Cal.App.3d 492, the defendant was charged with burglary and arson. (Id. at p. 495.) The defendant pled guilty to burglary and the jury acquitted him of the arson count. (Ibid.) During sentencing, the trial court referred to the great harm caused by the arson and denied the defendant probation. (Id. at p. 497.) The appellate court remanded for resentencing, finding the trial court erred in considering the damage caused by the arson, because defendant had been acquitted of that charge. (Id. at p. 498.)
Defendant argues that the rule of Takencareof precluded the trial court from using acquitted conduct to deny Proposition 36 probation, as this action increased his punishment through the use of acquitted conduct. Subsequent to defendant’s opening brief, the California Supreme Court overruled Takencareof. (People v. Towne (2008) 44 Cal.4th 63 (Towne).) Addressing whether a court could use facts implicitly found not true by the jury in its decision to impose an upper term (id. at p. 83), the Supreme Court concluded neither due process, double jeopardy, nor the right to jury trial justified the rule of Takencareof, and accordingly overruled that decision. (Id. at pp. 85-86.)
Under Towne, acquitted conduct can be considered in sentencing without violating due process. We find the Supreme Court’s decision precludes us from following Takencareof and accordingly reject defendant’s claim.
B.
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] held that other than the fact of a prior conviction, any fact increasing the penalty for a crime beyond the statutory maximum must be tried to a jury and proven beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citation.]” (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413], italics omitted.) In Cunningham, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence”, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 864].)
Defendant contends the “statutory maximum” supported by the verdicts was that he transported methamphetamine for personal use, and therefore was eligible for Proposition 36 probation. He argues the court’s finding to the contrary violated Cunningham and Apprendi.
The leading California Supreme Court case holds Proposition 36 effects a sentence reduction rather than the statutory maximum for the offense. “[N]othing in section 1210.1 [Proposition 36] could have created an enhancement to petitioner’s sentence since, when it applies, section 1210.1 reduces the potential punishment.” (In re Varnell (2003) 30 Cal.4th 1132, 1142 (Varnell).) “[I]n enacting Proposition 36, the electorate understood incarceration to be the preexisting standard penalty; it intended probation and treatment to reduce the penalty that would otherwise apply.” (People v. Dove (2004) 124 Cal.App.4th 1, 11 (Dove)].)
Courts applying Proposition 36 have concluded, “neither Apprendi nor Blakely prohibited the trial court from deciding, based on the preponderance of the evidence, whether defendant’s possession or transportation was for personal use for purposes of Proposition 36.” (Dove, supra, 124 Cal.App.4th at p. 11; see also People v. Barasa (2002) 103 Cal.App.4th 287, 294 (Barasa) [Apprendi does not apply because Proposition 36 “effects a sentence reduction, rather than an increase in the ‘prescribed statutory maximum’ sentence”]; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115 [following Barasa].)
Defendant argues these cases are distinguished as they were decided before Cunningham. He claims Cunningham “reaffirmed that a statutory maximum is determined by a jury’s verdict and not a number, such as [an] upper term.” This misconstrues Cunningham, a decision not relevant to the issue before us.
Cunningham did not address the sentence reduction scheme of Proposition 36 or otherwise support defendant’s argument that Proposition 36 probation is the statutory maximum sentence. Indeed, Cunningham specifically identified “the middle term specified in California’s statutes, . . . as the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].)
Probation is a matter of clemency, not of right. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) In Varnell, our Supreme Court found this general principle equally applicable to Proposition 36 probation, and concluded it was a sentence reduction rather than establishing a new statutory maximum for the relevant offense. (Varnell, supra, 30 Cal.4th at p. 1142.) Nothing in Cunningham diminishes the authority of that holding. We are bound to follow Varnell, and like the courts in Dove, Barasa, and Glaser, conclude the rule of Apprendi does not apply to the court’s decision as to whether defendant is eligible for Proposition 36 probation. The court’s finding that defendant possessed and transported drugs for sale rather than personal use, in spite of the jury’s verdict to the contrary did not implicate the rights to jury trial and due process set forth in Apprendi, Blakely, and Cunningham.
Nor, as defendant contends, does the fact that Barasa involved guilty pleas rather than an acquittal (see Barasa, supra, 103 Cal.App.4th at p. 290) change our analysis. Barasa’s holding is based on the premise that Proposition 36 reduces punishment rather than establishing a new maximum sentence. (Id. at pp. 294-295.) Whether the case involves a guilty plea or an acquittal and conviction on a lesser offense is irrelevant to the Apprendi analysis.
C.
Barasa, supra, held the defendant has the burden of proving by a preponderance of the evidence that his drug offenses were for personal use and therefore eligible for sentence reduction under Proposition 36. (Barasa, supra, 103 Cal.App.4th at p. 296; see also Dove, supra, 124 Cal.App.4th at p. 10 [applying Barasa].) The trial court applied the same standard in finding defendant’s drugs were not for personal use, and defendant argues this violates due process.
Evidence Code section 500 provides: “Except as otherwise provided by law, 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.” Citing this provision, the court in Barasa determined the defendant, as the party seeking relief under Proposition 36, had the burden of proving by a preponderance of the evidence the drugs he transported were for personal use. (Barasa, supra, 103 Cal.App.4th at p. 296.)
We agree with the reasoning of the Court of Appeal in Barasa. As already discussed, the California Supreme Court held in Varnell that Proposition 36 operates as a sentence reduction. (Varnell, supra, 30 Cal.4th at p. 1142.) The defendant is therefore the party seeking relief under this provision, and, under Evidence Code section 500, the party upon whom the burden of proof should be placed. As there is no justification for placing a higher burden, this burden should be carried by a preponderance of the evidence.
This is consistent with our decision in People v. Atwood (2003) 110 Cal.App.4th 805, where we held the People had the burden to prove the purpose of a missed probation interview when seeking to terminate Proposition 36 probation and send the defendant to prison. (Id. at pp. 811-813.) “The burdens of producing evidence and of persuasion flow from a party’s status as a claimant seeking relief. In Barasa, the defendant was the claimant. Here, the People, not defendant, are the claimant. Because they are both claimants, both the defendant in Barasa and the People in this case are properly assigned the burdens of producing evidence and of persuasion.” (Id. at p. 812.) It is entirely consistent with due process to place the burden of proof on defendant as the party seeking relief under Proposition 36.
II
Defendant claims use of the acquitted conduct to render him ineligible for Proposition 36 treatment violates the state and federal prohibitions against double jeopardy. We disagree.
As we have already discussed, the California Supreme Court held the use of a fact implicitly rejected by the verdict in sentencing does not violate double jeopardy. (Towne, supra, 44 Cal.4th at p. 85.) The United States Supreme Court has come to the same conclusion. (United States v. Watts (1997) 519 U.S. 148, 157 [136 L.Ed.2d 554, 565].)
Although these cases are mentioned elsewhere in his brief, defendant’s double jeopardy argument does not discuss them, let alone provide us with a reason to disregard the rulings of either Supreme Court.
III
Defendant claims the court abused its discretion by ruling against him at the Proposition 36 hearing even though the People presented no evidence, and also asserts the court could not act as a neutral magistrate because it heard evidence of his prior convictions for drug related offenses at the in limine hearing. Neither contention has merit.
A.
Defendant’s first contention is wrong because the People had no burden to present evidence at the Proposition 36 hearing. Under Proposition 36, it was defendant’s burden to prove he possessed and transported the drugs for personal use. (Barasa, supra, 103 Cal.App.4th 295-296.) Therefore, the People did not have to present any evidence at the Proposition 36 hearing.
Also, the prosecutor did not merely submit the case, but also pointed out defendant’s admission that he sold methamphetamine from time to time, the separate baggies of the drug, the large sum of cash in defendant’s possession, the two scales, and the presence of several empty baggies. The sentencing court, which presided over the trial, clearly had before it evidence from the trial upon which it could determine that the methamphetamine was not for defendant’s personal use.
B.
At an in limine hearing, the court heard evidence of defendant’s two prior convictions for transportation of methamphetamine, which the People sought to introduce at trial pursuant to Evidence Code section 1101 and to impeach defendant. The court allowed defendant to be impeached with the convictions, but sanitized the convictions so they could only be referred to as felonies.
Defendant claims the hearing on the prior convictions tainted the trial court by exposing it to “irrelevant, sensitive, and prejudicial material.” The taint from reviewing the prior convictions, defendant contends, deprived him of his due process right to a detached and neutral magistrate.
A trial judge is presumed to know and follow the law. (See People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The court’s ruling referred to the evidence submitted at trial and at the Proposition 36 hearing, making no mention of defendant’s prior convictions. Trial courts routinely deal with prejudicial evidence; keeping such evidence from the jury is one of the primary functions of trial courts. Defendant’s contention to the contrary is without merit.
IV
Defendant also claims the ruling that the methamphetamine was not for personal use was an abuse of discretion because it was not supported by substantial evidence and was based on improper expert testimony. We reject the contentions.
A.
We will uphold the trial court’s finding that the defendant’s drugs were not possessed or transported for personal use if it is supported by substantial evidence. (See, Dove, supra, 124 Cal.App.4th at p. 10.) Defendant’s possession of pay/owe sheets, a cutting agent for methamphetamine, large sums of cash, several scales, and his admission to an officer that he sold small quantities of methamphetamine all support the conclusion that the methamphetamine in his possession in both incidents was not for personal use. Although defendant also possessed paraphernalia for using the drug, the expert testified that some drug dealers also use their own product. Taken together, this is substantial evidence supporting the court’s findings.
B.
Defendant contends Deputy Reali was unqualified to testify as an expert on possession of methamphetamine for sale. We disagree. “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) An expert is qualified if he has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) The trial court’s determination whether a witness qualifies as an expert is subject to review for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.)
Detective Reali testified as an expert on the possession of methamphetamine for the purpose of sale. Defendant objected, asserting Detective Reali had no expertise on the effect of a person’s tolerance for methamphetamine on whether the drug was possessed for personal use. The court overruled the objection and allowed the detective to testify as an expert on possession of methamphetamine for sale.
Detective Reali took an 80-hour narcotics course from the Department of Justice, and also studied matters related to the sale of narcotics in the 80-hour Department of Justice detective core course. The majority of his narcotics course was on methamphetamine. As a detective for the narcotics street team, he made arrests for people engaged in illegal drug activity, though he never made a purchase of, or participated in, a sale operation for methamphetamine. He was not familiar with the manufacture of methamphetamine, precisely how to cut it, specifically how it affects the addictive centers of the brain, or how the body develops tolerance for the drug. He had testified as an expert at preliminary hearings four times, though never before at trial.
Defendant argues Detective Reali knew no more than the average person on whether methamphetamine was possessed for sale rather than personal use and therefore was not qualified to give expert testimony. The only case cited by defendant in support of his argument, People v. Chakos (2007) 158 Cal.App.4th 357, is inapposite. In Chakos, the court held that expertise in possession of illegal drugs for sale did not qualify the witness in determining whether the marijuana was possessed illegally or for legal medicinal purposes. (Id. at pp. 365, 367-368.) Detective Reali did not testify on whether the methamphetamine was possessed legally, but whether this illegal drug was possessed for personal use or sale. His training and experience qualify him to testify on this matter and the court did not abuse its discretion in allowing his expert testimony.
V
Defendant’s final contention is his sentence for possession of drug paraphernalia should have been stayed pursuant to section 654. We disagree.
Section 654, subdivision (a), provides in pertinent part that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The purpose of this section is to ensure the defendant’s punishment is commensurate with his criminal liability. (Neal v. State of California (1960) 55 Cal.2d 11, 20.)
Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct. (Neal v. State of California, supra, 55 Cal.2d at p. 19.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Ibid.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.)
Nothing in the record shows defendant possessed the paraphernalia only for the purpose of consuming the methamphetamine found in his possession in the two separate incidents. The court had already found the methamphetamine was possessed for sale. By his own testimony, defendant is addicted to methamphetamine. The court could reasonably conclude defendant possessed the paraphernalia not just to use some of the drugs found on him, but also for future and prior uses of methamphetamine. The paraphernalia charge was a separate offense arising out of a separate course of conduct from the possession and transportation offenses. The court correctly did not stay punishment under section 654.
CONCLUSION
The judgment is affirmed.
We concur: DAVIS, J., HULL, J.