(Super. Ct. No. NCR76602)
The opinion of the court was delivered by: Robie , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant, Larry Lee Dere, was found not guilty of sale of methamphetamine and possession of methamphetamine for sale and guilty of transportation and simple possession of methamphetamine. He requested probation under Proposition 36. After finding that defendant did not possess the methamphetamine for "personal use," and was thus ineligible for Proposition 36 probation, the court denied defendant's request and sentenced him to state prison. Defendant appeals the denial of his request. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
One early morning in February 2009, Sergeant Dave Kain conducted a traffic stop of defendant. Defendant was sweating, making rapid movements, and appeared very nervous. During the course of the stop, and a search incident to the stop, officers saw a baggie of methamphetamine on the ground next to defendant and found a second baggie of methamphetamine in defendant's pocket. A search of defendant's truck also revealed a digital scale. The baggies contained .67 and 1.61 grams of methamphetamine, representing approximately between 6 and 12 hits and 16 to 32 hits, respectively. Based on the manner in which the methamphetamine was packaged, the presence of the digital scale, and defendant's prior interactions with narcotics task force agents, Kain testified that in his expert opinion, the methamphetamine was possessed for sale.
Following a jury trial, defendant was acquitted of sale of methamphetamine and possession of methamphetamine for sale. He was found guilty of both transportation and simple possession of methamphetamine. In bifurcated proceedings, defendant admitted enhancement allegations that he had three prior drug-related convictions and served two prior prison terms. Defendant requested probation under Proposition 36. Relying on People v. Dove (2004) 124 Cal.App.4th 1 (Dove), the court reweighed the evidence and found by a preponderance of the evidence that the methamphetamine was possessed for sale. Accordingly, the court denied the request for probation under Proposition 36 and sentenced defendant to an aggregate term of 10 years in prison.
Defendant contends the trial court's reliance on Dove to deny him probation under Proposition 36 was misplaced, as recent United States Supreme Court authority has invalidated Dove. We disagree.
Under Proposition 36, "any person convicted of a nonviolent drug possession offense shall receive probation." (Pen. Code,*fn1 § 1210.1, subd. (a), italics added.) The term "nonviolent drug possession offense" means "the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance . . . ." (§ 1210, subd. (a).) The term "does not include the possession for sale, . . . of any controlled substance . . . ." (Ibid.) If the defendant is eligible, probation is mandatory. However, if the defendant is ineligible, a prison sentence is mandatory. (People v. Esparza (2003) 107 Cal.App.4th 691, 699; Dove, supra, 124 Cal.App.4th at p. 10.) To resolve the issue of Proposition 36 eligibility, the trial court determines whether defendant's possession was for "personal use" by a preponderance of evidence standard. Defendant bears the burden of proof on this issue. (Dove,at pp. 10-11; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115-1116.)
Defendant relies on United States v. O'Brien (2010) 560 U.S. ___ [176 L.Ed.2d 979], the latest in a line of United States Supreme Court cases explicating the meaning of the decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], to argue that the determination of whether the defendant has been convicted of a "nonviolent drug possession offense" under Proposition 36 is not a sentencing factor to be determined by a judge, but ...