Dove
People v. Dove III
Opinion
Opinion
Richli, J.
During a traffic stop, defendant Levell Dove III was found to
have about an ounce of rock cocaine in his pocket. The jury found him not guilty of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) but guilty of the lesser included offense of simple possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). It also found him guilty of transportation of cocaine base. (Health & Saf. Code, § 11352, subd. (a).)
Although the jury had refused to find that the cocaine base was for sale, the trial court refused to find that it was for personal use. On that ground, it ruled that defendant was ineligible for probation and treatment under Proposition 36. It sentenced him instead to eight years in prison (the midterm for transportation, doubled because he admitted a “strike” prior).
In the published portion of this opinion, we will hold that a factual finding that a defendant (fid not possess or transport a controlled substance for personal use, for purposes of Proposition 36 sentencing, can be made by the trial court under a preponderance of the evidence standard; neither Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] nor…