Ferrando

Defendant Walter Mario Ferrando appeals his conviction for opening or maintaining a place for the use or sale of methamphetamine (Health & Saf. Code, § 11366), as well as the sentence imposed following his conviction. He contends (1) there was insufficient evidence to support the instruction and conviction on an aiding and abetting theory and (2) the court erred in refusing to sentence him under Proposition 36.

In the published portion of the opinion, we shall conclude defendant was ineligible for Proposition 36 sentencing. In the unpublished portion of the opinion, we reject defendant’s other contention. We shall therefore affirm the judgment.

STATEMENT OF FACTS

RELEVANT PROCEDURAL HISTORY

Defendant was charged with two counts of possession of methamphetamine (§ 11377, subd. (a)), one count of possession of methamphetamine for sale (§ 11378), one count of maintaining a place for the use or sale of methamphetamine (§ 11366), a misdemeanor count of possession of less than an ounce of marijuana (§ 11357, subd. (b)), and one count of sale or transportation of methamphetamine (§ 11379, subd. (a)).

Following a jury trial, defendant was convicted on all counts, except for…