APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed in part, reversed in part, and remanded for resentencing. (Super. Ct. No. SCD205683).
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
A jury convicted Chauncy Lee Harris, Jr. of transportation of a controlled substance, cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364; count 4). As to count 1, the jury specifically found true that the transportation was for personal use within the meaning of Penal Code*fn1 section1210, subdivision (a).*fn2 After a bifurcated proceeding, the court found true that Harris had suffered seven prior prison terms (§ 667.5, subd. (b)) and that those included three previous drug/sale/transportation convictions under Health & Safety Code section 11352 (Health & Saf. Code, § 11370.2, subd. (a)). The court sentenced Harris to a total prison term of 19 years.
On appeal, Harris essentially contends the trial court imposed an unauthorized sentence by sending him to prison instead of granting him mandatory probation under Proposition 36 based on the express jury finding that he transported the cocaine base for his personal use and that the imposition of a 19-year prison term in this case constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Under the unique facts of this case, we conclude that the trial court was required to grant Harris Proposition 36 probation and his other arguments are moot.*fn3 We therefore affirm Harris's convictions and reverse his sentence, remanding the matter to the trial court for resentencing under Proposition 36.
Around 2:00 a.m. on April 3, 2007, San Diego Police Officer Benjamin Shumaker stopped a white Chrysler near the 5600 block of El Cajon Boulevard in San Diego because the driver was wearing headphones over both ears, which is a violation of the Vehicle Code. After approaching the driver and noticing there were two other passengers in the car, Shumaker called for assistance.
When San Diego Police Officer Oscar Amado arrived about two minutes later, he approached the passenger side of the car while Shumaker again contacted the driver. As Amado did so, he saw the left backseat passenger tuck something into the seat near his right hip area and noted the front passenger, later identified as Harris, appeared nervous, moving his head and fingers around. Amado had the passengers step out of the car and sit on the curb while he briefly searched the car with the use of a flashlight.
In the rear area of the car, Amado found a baggie of marijuana and another one containing residue of a controlled substance between the seat cushions. In the front area, he found a black plastic digital scale on the bench seat to the left of where Harris had been sitting and a cigarette box partially under the seat where Harris's legs had been located. Opening the box, Amado found two plastic baggies along with some cigarettes. Inside one of the baggies, he found nine pieces of cocaine base, known on the street as "crack" or "rock" cocaine. The "rocks" were different sizes, consistent with a "$5 rock, a $10 rock and a $20 rock," and subsequent testing revealed they totaled 2.15 grams. The other baggie contained a usable amount of methamphetamine. Because it was easy to conceal, Amado believed that the scale found was similar to the type usually used by street level drug dealers to weigh drugs for sale.
Amado then searched Harris and found a rolled up paper bindle in his right pants' pocket that contained about.07 grams of cocaine base and in his left rear pants' pocket found a "Brillo" copper padding, which is often used as a filter for a crack cocaine pipe. Although Amado did not find any significant amount of money on Harris or any pay and owe sheets near him, Amado believed that Harris possessed the cocaine rocks found on his person and in the car near where he had been sitting for sale. Amado cited the back seat passenger for possession of marijuana.
Shumaker, who had questioned and searched the driver, cited and released him for wearing the headphones while driving, for driving with a suspended license, and for possession of less than one ounce of marijuana and a methamphetamine pipe.
At trial, both Shumaker and Amado testified to the above facts. Although Amado opined that street level sales do not always involve a significant amount of money and pay/owe sheets, on cross-examination he conceded there was "nothing to substantiate... to further what we had as evidence," that would make him think that Harris was selling drugs and there were "a thousand and one uses" for Brillo padding. Neither Amado nor Shumaker wore gloves during the searches, and none of the items found in the searches were checked for fingerprints. Shumaker never noticed any suspicious or furtive movements by the occupants of the car during the stop. Further, even though Amado did not notice anything about Harris that made him think he needed to investigate him for being under the influence of drugs, he acknowledged that Harris's nervous movements could have been a sign that he was under the influence.
San Diego Police Narcotics Unit Detective Jovanna Derrough testified at trial as an expert regarding the possession of cocaine base for sale and personal use. Derrough explained that a person in possession of cocaine base for personal use will typically exhibit symptoms such as burnt fingerprints and have items in their possession like a glass pipe or rod to push the drug into the pipe to smoke cocaine base. A person in possession of cocaine for street level sales generally has a large amount of cocaine base, different types of packaging, large amounts of money, and a scale to weigh the cocaine. Derrough noted that these factors would not be present in every case, depending on when a dealer was arrested. For example, a dealer would only have a large amount of money after several sales whereas if he were arrested with drugs before being able to sell, he would not have much money.
Derrough further explained that street level sales of cocaine base are typically packaged in Ziploc baggies and that it was common for a street level dealer to also use the drugs he or she sells. Derrough stated that cocaine base is typically sold in $10 and $20 amounts, with a $20 buyer getting about.2 grams, which is two to four doses or "hits." 2.15 grams of cocaine base would yield about ten $20 "rocks" and be worth ...