Filed 2/19/16
                           CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                            THIRD APPELLATE DISTRICT
                                       (Sacramento)
                                            ----




THE PEOPLE,                                                    C076512

                Plaintiff and Respondent,                 (Super. Ct. Nos.
                                                        12F00720, 13F07078)
        v.

TYREE HUDSON,

                Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of Sacramento County, Kevin J.
McCormick, Judge. Affirmed in part and dismissed in part.

      Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant
and Appellant.

       Daniel N. Abrahamson for Clifford Gardner, Drug Policy Alliance, American
Civil Liberties Union of Northern California, and California Attorneys for Criminal
Justice as Amici Curiae on behalf of Defendant and Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A.
Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.



                                             1
       A jury acquitted defendant Tyree Hudson of possessing heroin, methamphetamine,
and cocaine base for sale, finding him guilty instead of the lesser included offenses of
simple possession of each. (Health & Saf. Code, §§ 11350, subd. (a)—count one; 11377,
subd. (a)—count two; and 11350, subd. (a)—count three.) The trial court sustained a
number of recidivist allegations. After finding by a preponderance of the evidence at
sentencing that defendant possessed the contraband with the intent to sell, the court
denied a grant of “drug probation” pursuant to Penal Code section 1210.1.1 It then
sentenced him to county jail for half his term and mandatory supervised probation for the
other half.

       Defendant maintains the trial court erred in determining that he is ineligible for
drug probation based on its own finding at sentencing that he possessed the contraband
for the purpose of sale.2 Defendant alternately argues that any finding of ineligibility
must be made by a jury beyond a reasonable doubt, and that in any event the evidence at
trial did not support a finding of possession for sale. Finally, he asserts the abstract of
judgment has an error in listing one conviction (count two) as possession of
methamphetamine for sale. We shall affirm the judgment in case No. 13F07078 and
direct the issuance of a corrected abstract of judgment.3


1 Undesignated statutory references are to the Penal Code.

2 Defendant represents in his brief that while this case was pending on appeal, the trial
court resentenced him pursuant to his petition under section 1170.18 (which gives him
the retroactive benefit of a Nov. 2014 initiative that reclassified his offenses as
misdemeanors), and gave him credit for time served. While we do not need to reach the
issue in the present case, we note for the benefit of the parties that we recently found such
action void in People v. Scarbrough (2015) 240 Cal.App.4th 916. As a result, we will
not find the failure to grant drug probation in the present appeal to be moot.
3 Defendant’s notice of appeal includes case No. 12F00720, in which he had entered a
plea of guilty to forgery and been placed on probation; the trial court revoked probation
and imposed a concurrent sentence with credit for time served. However, defendant does
not present any argument in connection with this case, so we deem the appeal abandoned

                                              2
       There are only a few additional pertinent points, so we omit a separate statement
of facts. Defendant drew an officer’s attention after behaving oddly in response to the
officer’s presence. Defendant ultimately dropped a baggie and kicked it under a car. The
officer arrested him and retrieved the baggie, which contained 23 bindles of heroin
(totaling about 5.5 grams), two or three bindles of methamphetamine, and seven bindles
of cocaine base (both substances amounting to about 0.07 grams each). A detective
offered the opinion at trial that defendant possessed the contraband for sale, given the
amounts, packaging, and the multiplicity of drugs. A defense expert offered a contrary
opinion, not finding any of those circumstances unusual for personal use.

                                       DISCUSSION

                             I. Eligibility for Drug Probation
       Enacted pursuant to a 2000 initiative, section 1210.1 mandates the grant of drug
probation—probation conditioned on participation in a drug treatment program—for an
otherwise eligible defendant with a conviction for a “nonviolent drug possession.”
(§ 1210.1, subd. (a); see id., subd. (b) [listing several disqualifying criteria].) Section
1210, added at the same time, originally defined nonviolent drug possession as
“possession, use, or transportation for personal use”; it excluded the possession for sale
or manufacture of any controlled substances. (Voter Information Guide, Gen. Elec.
(Nov. 7, 2000) text of Prop. 36, § 4, p. 66.)4 A trial court thus does not have discretion to



as to case No. 12F00720 and dismiss it. (See Conservatorship of Ben C. (2007)
40 Cal.4th 529, 544.)
4 In 2003, the Legislature (by unanimous vote) amended the definition of “nonviolent
drug possession” to the present language: “personal use, possession for personal use, or
transportation for personal use.” (Stats. 2003, ch. 155, § 1, p. 980.) The Legislature was
concerned that the original language was ambiguous as to whether the qualification of
“personal use” applied only to transportation, i.e., prosecutors were applying the “ ‘last
antecedent rule’ ” (People v. Le (2006) 137 Cal.App.4th 54, 62) rather than the
distributive rule of reddendo singula singulis (Sargent v. Shumaker (1924) 193 Cal. 122,

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impose any other sentence on an eligible defendant. (People v. Harris (2009)
171 Cal.App.4th 1488, 1496 (Harris); People v. Esparza (2003) 107 Cal.App.4th 691,
699.)

        People v. Rogers (1971) 5 Cal.3d 129 had interpreted the predecessor of Health
and Safety Code section 11352 as embracing transportation (and other actions) of
controlled substances for any purpose, even personal use. (Rogers, at pp. 134-135.)5
Because Penal Code section 1210.1 applies only to transportation for personal use (which
is not a separately defined offense), courts have determined that—absent a specific jury
finding of personal use, as opposed to an acquittal or failure to sustain an allegation—a
defendant convicted of transportation has the burden at sentencing of persuading the
sentencing court that the transportation conduct involved only personal use in order to
establish eligibility under section 1210.1. (Harris, supra, 171 Cal.App.4th at pp. 1491,
1497-1498 [court cannot disregard express jury finding of personal use]; People v. Dove


127-128 [“ ‘ “referring each phrase or expression to its appropriate object” ’ ”]). (Sen.
Com. on Public Safety, Apr. 29, 2003 Rep. on Sen. Bill No. 762 (2003-2004 Reg. Sess.)
as amended Apr. 21, 2003, p. H.) It feared as a result that one who possessed a
controlled substance for purposes of committing sexual assault rather than sale could seek
the benefit of section 1210.1. (Sen. Com. on Public Safety, supra, at p. H.) It thus
sought to make a “largely grammatical change” in section 1210, which it found to be
“consistent with the underlying rationale” of the initiative. (Assem. Com. on Public
Safety, July 1, 2003 Rep. on Sen. Bill No. 762 (2003-2004 Reg. Sess.) as amended
May 6, 2003, p. 4.) The voter materials confirm the accuracy of this clarification. In
rebuttal to an opposition argument that “ ‘date rape’ ” offenders would qualify for
probation, the proponents asserted, “They try to scare you by saying sex offenders with
‘date rape’ drugs benefit from this initiative. Not true. Only drug possession ‘for
personal use’ qualifies; using drugs to enable rape is not ‘personal use.’ ” (Voter
Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 27; see
People v. Glasper (2003) 113 Cal.App.4th 1104, 1114 (Glasper) [initiative intended to
include only possession for personal use].)
5 The Legislature abrogated this holding in 2013, adding a subdivision (c) to the statute
(Health & Saf. Code, § 11352) that specifically defines “transport[ation]” as being
limited to transportation for sale. (Stats. 2013, ch. 504, § 1.)


                                             4
(2004) 124 Cal.App.4th 1, 11 (Dove); Glasper, supra, 113 Cal.App.4th at pp. 1115-1116;
People v. Barasa (2002) 103 Cal.App.4th 287, 296; cf. United States v. Watts (1997)
519 U.S. 148, 157 [136 L.Ed.2d 554]; People v. Towne (2008) 44 Cal.4th 63, 83, 85-86
[both cases holding that sentence can be based on facts underlying acquittal]; People v.
McCoy (2012) 208 Cal.App.4th 1333, 1340 [can make any factual findings for § 654 not
contrary to an express jury finding].) This fact does not need to be the subject of a jury
finding proven beyond a reasonable doubt, because it involves eligibility for a mitigated
sentence, not an increase in punishment.6 (Dove, supra, 124 Cal.App.4th at pp. 4, 8-11;
Glasper, supra, 113 Cal.App.4th at pp. 1114-1115; Barasa, supra, 103 Cal.App.4th at
pp. 294-295; cf. People v. Elder (2014) 227 Cal.App.4th 1308, 1315 [same rule; jury not
required to determine eligibility for resentencing under § 1170.126].)

       In dictum, Dove (citing Barasa) suggested the same rule applies to a defendant
convicted of simple possession. (Dove, supra, 124 Cal.App.4th at p. 10.) The present
trial court justified its action pursuant to Harris and Dove (as well as an unpublished
federal trial court opinion on a habeas petition, approving analysis to this effect in an
unpublished decision of this court that involved convictions for possession and for
transportation).

       As we understand defendant’s argument, the distinction between the authority on
the one hand approving a sentencing court’s factfinding with respect to personal use in
the context of transportation and the suggestion on the other hand of the same function in
the context of simple possession lies in the former’s expansion of eligibility under section
1210.1 for drug probation and the latter’s restriction on eligibility. However, in either
instance, factfinding at sentencing as to whether a defendant’s offense involved only the



6 Defendant’s contention to the contrary, raised in supplemental briefing, completely
ignores this authority. We therefore reject it as meritless.


                                              5
personal use of a controlled substance is consistent with the statutory purpose. To the
extent the Legislature identified plausible ambiguity in the manner in which prosecutors
were interpreting the plain language of the initiative, we properly resort to the expressed
intent in the ballot materials (People v. McRoberts (2009) 178 Cal.App.4th 1249, 1255),
which as noted in footnote 4, ante, embraced only possession for personal use within the
ambit of section 1210.1 and specifically abjured any inclusion of possession for purposes
of committing sexual assault.7 Thus, as with the Rogers-glossed transportation statute,
eligibility for drug probation is limited to a category of defendants that does not comprise
a separately defined crime: the elements of the offense focus only on possession, not any
non-sale illicit use to which a defendant intended to put the controlled substance other
than personal use (be it date rape or otherwise). As a result, the rule of Barasa formerly
applied in transportation convictions is properly extended by analogy to convictions for
simple possession, as Dove suggested.

       Here, the jury acquitted defendant of possession for sale and convicted him of
simple possession of heroin, methamphetamine, and cocaine in violation of Health and
Safety Code sections 11350, subdivision (a) (counts one and three) and 11377,
subdivision (a) (count two). Those statutes provide that every person who possesses a
designated controlled substance shall be punished, but they do not specify that the
possession must be for personal use. Arguably, a defendant could be convicted under
those statutes for possessing a controlled substance even when the purpose of the
possession was for a reason other than personal use, such as to administer the controlled
substance to a victim.



7 We gave leave to several amici curiae to file a joint brief. They assert at length that the
electorate had intended all convictions for simple possession to be eligible under section
1210.1. In light of the indicia of intent we have identified, we do not find their argument
to be persuasive.


                                              6
       As noted, section 1210.1 provides that a defendant may be eligible for drug
treatment probation if he or she is convicted of a “nonviolent drug possession offense,”
(§ 1210.1, subd. (a)), which the statute defines as involving personal use. Among other
things, defendants are not eligible for drug treatment probation if they possessed the
controlled substance for a use other than personal use, such as for sale, for manufacture,
or for use against a victim.

       In this case, the jury did not make a finding that defendant possessed the heroin,
methamphetamine, and cocaine for personal use. It simply found that he possessed
heroin, methamphetamine, and cocaine. Under the circumstances, it was necessary for
the trial court to determine at sentencing whether defendant was eligible for section
1210.1 drug treatment probation, including making a finding as to whether defendant
possessed the controlled substances for personal use. In considering eligibility for drug
probation (which is mandatory for those eligible), the trial court found by a
preponderance of the evidence that defendant possessed the controlled substances for a
purpose other than personal use (sale), a finding supported by substantial evidence (as we
note below). Because such a finding merely determined eligibility for a mitigated
sentence and did not impose an increase in punishment, the trial court was authorized as a
result to make that finding and sentence defendant to prison rather than grant drug
probation.
       Defendant contends the evidence would support a finding that he possessed the
controlled substances for personal use. However, the evidence would also support the
trial court’s finding to the contrary. It is a fundamental principle of appellate review of
the sufficiency of the evidence that resolution of equally plausible conflicting inferences
from undisputed evidence is for the trier of fact, not the Court of Appeal. (9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 376, p. 434; CenterPoint Energy, Inc. v. Superior
Court (2007) 157 Cal.App.4th 1101, 1119.) The prosecution expert offered plausible



                                              7
reasons for inferring from the circumstances that defendant possessed the controlled
substances for sale. We are constrained from countermanding the trial court’s reliance on
this evidence.

       Here, in summary, the trial court made a finding, supported by substantial
evidence, that defendant did not possess the controlled substances for personal use and
thus was not eligible for drug treatment probation. The trial court did not err in making
this determination.
                      II. Corrections to the Abstract of Judgment
       As defendant notes, the abstract of judgment incorrectly describes count two as a
conviction for possession of “meth 4 sale” (Health & Saf. Code, § 11378) rather than
simple possession (id., § 11377, subd. (a)). Although the parties do not mention it, the
abstract also incorrectly describes count three as a conviction for possession of heroin
rather than cocaine base. We will direct the trial court to prepare a corrected abstract of
judgment correcting these errors.

                                      DISPOSITION

       The appeal in case No. 12F00720 is dismissed. The appeal in case No. 13F07078
is affirmed. The trial court shall prepare a corrected abstract of judgment properly
describing the nature of counts two and three and forward a certified copy to the
Department of Corrections and Rehabilitation.

                                                        BUTZ                  , J.
We concur:


      NICHOLSON             , Acting P. J.


      MAURO                 , J.




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