Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6281373
BLEASE, Acting P. J.
Pursuant to Proposition 36, the trial court is required to place a defendant convicted of a “nonviolent drug possession offense” on probation, unless a statutory exception is implicated. (Pen. Code, § 1210.1, subd. (a).) The question presented in this case is whether possessing a false compartment to store drugs in violation of Health and Safety Code section 11366.8, subdivision (a), is a nonviolent drug possession offense. (Pen. Code, § 1210, subd. (a).) Respondent superior court answered the question in the affirmative and granted probation to defendant Danae Lobato.
The People seek a writ of mandate commanding the superior court to reverse its decision. We shall grant the requested relief. As we shall explain, the offense at issue is not directed at the simple possession and personal use of drugs and, thus, cannot be considered a nonviolent drug possession offense.
BACKGROUND
Defendant Danae Lobato entered a plea of no contest to possession of a false compartment to store drugs. (Health & Saf. Code, § 11366.8, subd. (a).) The parties stipulated to the factual basis for the plea as follows: defendant had a secret compartment in the center console area of her car that contained (1) a loaded hypodermic syringe with three units of a liquid containing methamphetamine, and (2) a folded-up piece of paper containing.19 grams of methamphetamine.
The reporter’s transcript of the hearing describes the amount as 19 grams. However, the People concede this was a clerical error of omission and that it was in fact.19 grams.
An issue left open by the plea was whether defendant’s offense was a “nonviolent drug possession offense,” which would require a grant of probation pursuant to Proposition 36. (Pen. Code, § 1210.1, subd. (a).) The superior court analogized the offense to transportation of a controlled substance, which may be a nonviolent drug possession offense depending on whether or not the substance was for personal use. The court explained: “[I]t’s clear that based on the size and the location of the concealed compartment, it was for concealing personal use or amounts of controlled substances for personal use and the paraphernalia in conjunction with that....” Accordingly, the court concluded that probation under Proposition 36 was warranted.
On April 23, 2009, the People filed a timely petition for writ of mandate in this court, their exclusive remedy to challenge an order granting probation. (See Pen. Code, § 1238, subd. (d).) On May 11, we advised the parties that we were considering issuing a peremptory writ in the first instance, that any opposition was to be filed on or before May 21, and that any reply was due 10 days thereafter. Defendant filed a timely opposition. The People did not file a reply.
DISCUSSION
“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 Section 4573.6 or 4573.8.” (Pen. Code, § 1210, subd. (a).) In interpreting Proposition 36, the state Supreme Court and this court noted that the ballot argument in favor of the measure emphasized it was “strictly limited” and “only affects simple drug possession.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000), argument in favor of Prop. 36, p. 26, quoted in People v. Canty (2004) 32 Cal.4th 1266, 1281; People v. Wheeler (2005) 127 Cal.App.4th 873, 880.)
The offense at issue in the current case involves a violation of Health and Safety Code section 11366.8, subdivision (a). That statute provides: “Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or in the state prison.” (Ibid.) At the outset, we recognize that the intent element of the crime relates to the concealment of drugs. But the statute is directed at the possession of a false compartment rather than the possession of drugs. In fact, one may violate the statute even if no drugs are found. Thus, the statute is similar to others that the Court of Appeal has found not to qualify as nonviolent drug possession offenses.
For example, in People v. Wheeler, supra, 127 Cal.App.4th 873, this court held that forging or issuing a prescription (Health & Saf. Code, § 11368) was not a nonviolent drug possession offense. In doing so, we acknowledged that the offense was not necessarily commercial like the offenses specifically excluded under the second sentence of Penal Code section 1210, subdivision (a), which refers to “the possession for sale, production, or manufacturing of any controlled substance....” (People v. Wheeler, supra, at p. 880.) But we explained that the crime of prescription forgery was not “simple drug possession” and that the statute itself was not specifically limited to the situation where the prescription is for drugs for a defendant’s personal use. (Ibid.) We further observed: “[E]ven when the drugs are for personal use, [Health and Safety Code] section 11368 is directed at a greater evil than possession and personal use of the obtained drugs. It is primarily directed at forgery of the indicia of a powerful authority solely reserved to statutorily defined ‘practitioners.’” (Ibid.) We explained that the statute protected the integrity of the system and the safety and health of the public, and helped prevent fraud. (Ibid.)
Health and Safety Code section 11368 may be violated in several ways, as described in the statute. This court’s opinion was limited to addressing violations by a person “who forges or alters a prescription or who issues or utters an altered prescription.” (Ibid.; see People v. Wheeler, supra, 127 Cal.App.4th at p. 878.)
In a similar context, Division Three of the First Appellate District held that forging or presenting a forged prescription under the same statute (Health & Saf. Code, § 11368) was not a nonviolent drug possession offense. (People v. Foreman (2005) 126 Cal.App.4th 338.) The court likewise focused on the statutory language describing a nonviolent drug possession offense. (Id. at p. 341-342.) Relying on a prior decision, the court observed: “In passing the initiative as drafted ‘the voters intended to define the offenses qualifying for Proposition 36 treatment only as the offenses of unlawful personal use, possession for personal use, or transportation for personal use of the identified controlled substances -- and nothing else.’” (Id. at p. 343, quoting In re Ogea (2004) 121 Cal.App.4th 974, 982.)
In re Ogea, supra, 121 Cal.App.4th 974, was a case involving possession of methamphetamine while armed with a firearm, a violation of Health and Safety Code section 11370.1, subdivision (a). That case specifically rejected a defendant’s argument that the exclusionary language in the second sentence of Penal Code section 1210, subdivision (a) comprehensively defined all drug-related offenses to which Proposition 36 did not apply. (In re Ogea, supra, at p. 983.)
Similar reasoning compels the conclusion that possession of a false compartment under Health and Safety Code section 11366.8, subdivision (a), is not a nonviolent drug possession offense. On its face, the statute refers to an act that is not directly related to the personal use of drugs, i.e., possession of a false compartment. The fact that there is an intent element referring to the concealment of drugs does not dictate a contrary conclusion.
Defendant argues that it is the particular conduct at issue in a case, not the offense itself, that is dispositive in deciding whether an offense is a nonviolent drug possession offense. The defendants in the prescription drug cases made similar arguments, emphasizing that their own conduct was directed at obtaining drugs for their personal use. (See People v. Wheeler, supra, 127 Cal.App.4th at p. 879; People v. Foreman, supra, 126 Cal.App.4th at p. 342.) But it is not enough for the offense to encompass conduct that may facilitate personal use of drugs. The critical question is whether the offense is limited to simple possession, transportation for personal use, and use of drugs. Where, as here, the statute is also directed at evils other than the personal use of drugs, and the conduct at issue implicates those concerns, it falls outside the ambit of Proposition 36.
In this respect, the statute at issue is directed at similar concerns to Penal Code section 135, which prohibits the destruction or concealment of evidence. This court has held that Penal Code section 135 is a misdemeanor that is not related to the use of drugs. (People v. Moniz (2006) 140 Cal.App.4th 86.) In so holding, we made the following points: (1) The “possession of drugs does not go hand in hand with destroying or concealing evidence”; (2) Penal Code section 135 is not directed toward drugs, instead the “central focus... is destruction of evidence”; and (3) the purpose of Penal Code section 135 is “to prevent the obstruction of justice.” (Id. at p. 94.) With respect to the third point, we observed: “[D]efendant argues, like mere possession of a drug and unlike driving under the influence, ‘there is no inherent risk to the public by the concealment of drugs from a law enforcement officer.’ However, as the People point out, the interest protected under section 135 differs from the interests protected by proscribing possession of drugs. The purpose of section 135 is to prevent the obstruction of justice. Through section 135, society seeks to prevent impediments to investigations and trials, and thus to preserve law enforcement and judicial resources.” (Ibid.)
Proposition 36 excludes eligibility if the defendant has been “convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.” (Pen. Code, § 1210.1, subd. (b)(2).) The analysis of whether a misdemeanor offense falls within this provision commonly follows the factors identified by the state Supreme Court in People v. Canty, supra, 32 Cal.4th 1266, which concluded that driving while under the influence of a controlled substance was a misdemeanor not related to the use of drugs.
Much the same could be said of the offense of possession of a false compartment for the concealment of drugs. We conclude that the possession of a false compartment, even if that compartment contains drugs for personal use, cannot be considered a nonviolent drug possession offense.
CONCLUSION
Having complied with the procedural requirements for issuance of a peremptory writ in the first instance, we are authorized to issue the peremptory writ forthwith. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
Let a peremptory writ of mandate issue directing respondent superior court to vacate its order granting probation to defendant Danae Lobato upon a finding that defendant’s offense of possessing a false compartment to store drugs is a nonviolent drug possession offense for purposes of Proposition 36. Respondent shall conduct further proceedings consistent with this opinion, including resentencing defendant.
We concur: HULL, J., BUTZ, J.