(Super. Ct. No. CRF090986)
The opinion of the court was delivered by: Mauro, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant George Vern Yount of transporting heroin and methamphetamine, and also of possessing heroin and drug paraphernalia. The jury deadlocked, however, on whether defendant possessed methamphetamine for sale, and that count was dismissed. Nonetheless, for purposes of sentencing, the trial court found that defendant failed his burden to show that he possessed the drugs for his personal use; accordingly, the trial court found that defendant was not eligible for Proposition 36 probation.*fn1
Defendant contends on appeal that the trial court erred and abused its discretion in finding him ineligible for Proposition 36 probation. He argues that the trial court's finding was "directly contradicted by the jury's verdict and the evidence."
A defendant claiming eligibility for Proposition 36 probation bears the burden of showing by a preponderance of the evidence that the possession was for personal use. Although the jury deadlocked on possession for sale, the trial court did not abuse its discretion in finding, for purposes of sentencing and based on evidence which included indicia of sales, that defendant failed to meet his burden and that he was not eligible for Proposition 36 probation. However, defendant is entitled to additional conduct credits. We will affirm the judgment as modified.
FACTS AND PROCEDURAL BACKGROUND
On Saturday, January 31, 2009, at 9:00 a.m., Woodland Police Officer Matthew Jameson was stopped at an intersection in the city. He saw a car travel toward him and then pull over to the side of the road. Defendant got out of the car and raised the hood. Jameson contacted him and asked whether he had anything illegal on him. Defendant said his pocket contained a pill bottle that he had found.
Officer Jameson searched defendant's jacket pocket and found a glass smoking pipe and a standard prescription pill bottle. The bottle contained eight small Ziploc baggies. Six of the baggies bore a printed logo of a marijuana leaf, one baggie bore a printed logo of red dice, and one baggie was clear. The baggies contained methamphetamine. The bottle also held a small bindle of marijuana.
A search of defendant's inside jacket pocket yielded heroin wrapped in cellophane. A second glass pipe was found in defendant's pants pocket.
Officer Jameson also found a cellular telephone and $166 in cash: one $100 bill, three $20 bills, one $5 bill, and one $1 bill.
Defendant told Officer Jameson that he had purchased the heroin and methamphetamine two days previously, on January 27, 2009, in West Sacramento and that it was for his personal use. He described the methamphetamine as a "[h]alf ounce" and a "quarter ounce," and he said those quantities would last ...