Filed 7/11/13 P. v. Walker CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037230
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1080058)

         v.

RAYMOND JEROME WALKER,

         Defendant and Appellant.



         Defendant Raymond Jerome Walker was sentenced to prison after a jury found
him guilty of simple possession of cocaine base and transportation of cocaine base. On
appeal he contends that the trial court erred in denying Proposition 36 treatment based
upon a refusal to find that defendant did not possess the cocaine for personal use.
Defendant contends in effect that such a finding was compelled by his acquittal on
charges of possession for sale. We reject the contention, and will affirm.
                                                   BACKGROUND
         On April 4, 2010, defendant drove his car into a ditch and was taken to a hospital
by a paramedic. He denied to the paramedic that he had been using drugs or alcohol.
However his “mental status” appeared “altered” and he was “act[ing] very bizarrely,”
including talking constantly to himself in the ambulance.
At the hospital, while defendant was being prepared for surgery, a plastic bag containing
a number of small white spheres was observed protruding from his rectum. This was
retrieved and delivered to law enforcement officials. Also retrieved was a scorched glass
pipe.
        The bag was found to contain 24 white objects of similar size and appearance. A
criminalist tested two of them, and found that they consisted of .14 and .15 grams,
respectively, of rock cocaine. Testifying as an expert, a police officer opined that
defendant had possessed the cocaine base for sale because it was a relatively large
quantity and the rocks were individually wrapped. On cross-examination, he
acknowledged that a heavy user might purchase such a quantity for his own use, and that
he might buy it individually wrapped if that was what the dealer had for sale. However a
dealer would generally make more money—and inferentially a buyer would pay more—
for “smaller chunks” than for cocaine sold “in bulk.” He also acknowledged that a dealer
generally has additional accessories of sale—such as scales, cell phones, ledgers, and
cash—whereas defendant was found with only cocaine and a pipe. He also
acknowledged that he had never bought cocaine from a dealer who had, in his presence,
“pulled it out of their bottom.”
        The defense presented evidence that defendant had recently relapsed from drug
abstention and had been observed smoking a crack pipe, or under the apparent influence
of drugs, on several occasions over the two or three days preceding the discovery of
cocaine base on his person.
        Defendant was charged with possession of cocaine for sale (Health & Saf. Code,
§ 11351.5) and transportation or sale of a controlled substance (Health & Saf. Code,
§ 11352, subd. (a)). The jury found him not guilty of the first charge, but guilty of the
lesser offense of simple possession of cocaine base, and guilty of the second charge. The



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jury also sustained an allegation that defendant had a prior conviction for a violation of
Health and Safety Code section 11352.
       At sentencing, defendant addressed the court, indicating that he only possessed the
cocaine for his own use and was not “transporting [it] for anybody.” Defense counsel
argued that he “qualifies for Prop 36 based on the jury’s verdict.” The prosecutor
countered that, under two cited cases, it was “clearly within the Court’s . . . discretion,”
notwithstanding the verdict, “to determine eligibility for Prop 36.” (See People v.
Glasper (2003) 113 Cal.App.4th 1104 (Glasper); People v. Barasa (2002) 103
Cal.App.4th 287 (Barasa).)
       The court rejected the defense position, stating, “I do not find that you are eligible
for Prop 36. I think the Glasper case is very relevant here. [¶] And frankly, the fact that
a jury could find that 26—I believe it was 25 individually wrapped rocks of cocaine was
not possession for sale is a surprise to me. I’ve never seen such a huge amount not being
possessed for sale. [¶] But I—and I do find that it was not an amount that was likely to
be for personal use. In the Glasper case, there were only 14 individual rocks that the
Court found were not for personal use.”
       The court imposed a sentence of seven years in prison. Defendant filed this timely
appeal.
                                        DISCUSSION
       The ultimate question is whether defendant was entitled to diversion under Penal
Code sections 1210 and 1210.1, which were adopted by initiative in 2001 as part of
Proposition 36. They provide that, with certain exceptions not relevant here, “any person
convicted of a nonviolent drug possession offense shall receive probation,” conditioned
on “participation in and completion of an appropriate drug treatment program.” (Pen.
Code, § 1210.1, subd. (a).) “[N]onviolent drug possession offense” includes “unlawful
personal use, possession for personal use, or transportation for personal use of any

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controlled substance,” but does not include “possession for sale.” (Pen. Code, § 1210,
subd. (a).)
       The court below found that defendant possessed the cocaine found on his person
for sale and not for personal use. Defendant contends that the court could not properly
make such a finding after the jury acquitted him of possession for sale. As defendant
puts it, “the sentencing court could not have found that appellant possessed the cocaine
for sale because the jury had found that he did not possess the cocaine for sale.” But the
jury made no such finding. Its verdict acquitting defendant of possession for sale did not
import an affirmative determination that he “did not possess the cocaine for sale.” Rather
it determined only that the prosecution had failed to prove beyond a reasonable doubt
that defendant did possess the cocaine for sale. As the jury was instructed, its task was to
determine whether the prosecution had proven the elements of the offense beyond a
reasonable doubt. These included the element that defendant “intended to sell” the
cocaine he possessed. The verdict establishes only that the prosecution failed to prove
this element by the demanding reasonable-doubt standard. (Cf. People v. Harris (2009)
171 Cal.App.4th 1488, 1491, 1494 [jury “specifically found” that cocaine was
transported for personal use].)
       To establish eligibility for Proposition 36 diversion, it was defendant’s burden to
establish by a preponderance of the evidence that he did not possess the cocaine for sale,
i.e., that he possessed it for personal use. This is at any rate is the effect of several
decisions that have previously addressed these questions. The earliest of these is Barasa,
supra, 103 Cal.App.4th 287, where the defendant had pleaded guilty to a charge, as
relevant here, of transporting controlled substances. On appeal he contended that he was
entitled to Proposition 36 diversion with respect to this charge unless the prosecution
proved that the transportation was not for personal use. (Id. at p. 292.) The court
understood this argument to rest on an implicit interpretation of the statute making it the

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state’s burden to prove ineligibility for diversion. (Ibid.) The court rejected this
interpretation, applying the general rule that “ ‘ “a party has the burden of proof as to
each fact the existence or nonexistence of which is essential to the claim for relief or
defense that he is asserting.” ’ ” (Id. at p. 296, quoting Tusher v. Gabrielsen (1998) 68
Cal.App.4th 131, 144-145, quoting Evid. Code, § 500.) To complete the implicit
syllogism, it is the defendant who asserts a “claim for relief” by seeking probation under
Proposition 36; therefore it is the defendant’s burden to establish his eligibility.
       In Glasper, supra, 113 Cal.App.4th 1104, another panel of this court followed
Barasa in a context more nearly resembling the present one. The three defendants there
were charged with transporting cocaine base and possessing it for sale. One of them was
entirely acquitted of the latter charge, while the other two were found guilty of simple
possession. Two of the defendants challenged the trial court’s finding that they were
ineligible for diversion under Proposition 36. (Id. at p. 1112.) They argued that their
acquittals of possession for sale precluded a determination that they had possessed the
substance for other-than-personal use. (Ibid.) One of them argued that this verdict
constituted a “ ‘finding’ ” by the jury “that she had not possessed cocaine for anything
other than ‘straight’ possession.” (Id. at p. 1113.) The trial court found otherwise, based
primarily on the number of “rocks” possessed by the defendants, i.e., 14. (Id. at pp. 1113,
1114.) This court explicitly adopted the reasoning of Barasa in concluding that the
defendant bears the burden of demonstrating facts making him eligible under Proposition
36, and that he does not necessarily carry that burden merely by securing an acquittal on
a charge of possession or transportation for sale. (Id. at pp. 1115-1116.)
       In People v. Dove (2004) 124 Cal.App.4th 1, 10-11 (Dove), the court followed
Barasa and Glasper in placing the burden of proof on the defendant, adding that the
appropriate standard of proof was a preponderance of the evidence. The court went on to
conclude, logically enough, that “the acquittal on the charge of possession for sale did not

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bind the trial court. The acquittal simply meant the jury was not convinced beyond a
reasonable doubt that the possession was for sale. Precisely because Apprendi [v. New
Jersey (2000) 530 U.S. 466] and Blakely [v. Washington (2004) 542 U.S. 296] did not
apply, the trial court was free to redetermine the personal use issue based on the
preponderance of the evidence.”1
       Defendant’s attempts to escape the effect of these cases are unavailing. He
proposes to distinguish Barasa on the ground that the defendant there had entered a guilty
plea including a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), which
permitted the court to consider the facts underlying certain dismissed charges. We are
relying on the case, however, only for its allocation of the burden of proof on the question
of Proposition 36 eligibility. Defendant does not appear to take issue with the rule of law
announced by the case on that subject. The factual distinction he points to has no
apparent bearing on the applicability of that rule.
       Defendant acknowledges that the facts in Glasper are “somewhat more similar to
this case.” Parsing them closely, however, he concludes that they might have been
interpreted in a way that reconciled the court’s finding that the drugs were being
transported for sale with the jury’s supposed finding that they were not possessed for
sale. We question the logical coherence of this highly creative effort but we need not
analyze it in detail because there is no suggestion that the court there engaged in any such
microscopic analysis of the record. Again, we rely on the case for the rule it adopted, not
its application of that rule to the particular facts before it. The rule is that a defendant
       1
          The two referenced decisions were cited in all of the above cases in support of
arguments that a decision to withhold diversion under Proposition 36 implicates the
federal right to trial by jury, so as to require that a jury find any disqualifying fact beyond
a reasonable doubt—something the juries had refused to do in Glasper and Dove, as the
jury did here. (See Dove, supra, 124 Cal.App.4th at pp. 8-9, discussing In re Varnell
(2003) 30 Cal.4th 1132 [rejecting argument in similar context that federal jury right is
implicated].) Defendant raises no such argument here.

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seeking Proposition 36 diversion bears the burden of establishing by a preponderance of
evidence the existence of facts warranting such diversion. The prosecution’s failure to
carry its considerably heavier burden on an underlying charge does not preclude,
logically or legally, a finding by the trial court that the defendant has failed to carry the
burden imposed on him by these cases.
       Indeed, despite his early references to a jury “finding” that he did not possess
methamphetamine for sale, defendant ultimately acknowledges the true nature of the
defense argument and the jury’s adoption of that argument: “Appellant . . . presented a
defense that he was a former cocaine addict who had relapsed and that the 24 rocks could
have been possessed for personal use. In acquitting appellant of possession for sale, the
jury must have concluded that appellant’s defense was correct, or that there was a
reasonable possibility that it was correct, despite the amount of cocaine possessed.”
(Italics added.) To establish an entitlement to diversion, it was not enough that defendant
show he “could have” possessed 24 rocks for personal use or that this was a “reasonable
possibility.” He had to show by a preponderance of the evidence that he in fact possessed
the rocks for personal use. He failed to persuade the trial court of that proposition, and
therefore the only way to obtain reversal would be to show that possession for personal
use was established as a matter of law. Defendant has not attempted such a showing and
it does not appear that the present record would afford any basis to do so.
                                        DISPOSITION
       The judgment is affirmed.




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