Filed 6/24/15 P. v. Montano CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
MARC MONTANO,
Defendant and Appellant. B252536
(Los Angeles County Super. Ct. No. BA388602)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Monica Bachner, Judge. Affirmed as modified. Suzann Ellen Papagoda, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ ____________2 Defendant and appellant Marc Montano raises contentions of sentencing error and a discovery violation following his convictio n of possession of a co ntrolled substance, with prior serious felony conviction findings. For the reasons discussed below, the judgment is affirmed as modified. BACKGROUND
Viewed in accordance with the usual rules of appellate review ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evid ence established the following. On September 2, 2011, at 9:45 p.m., Lo s Angeles Police Officers John Bain and Arthur Castro were on patrol near Hermon Park, an area know n for narcotics trafficking. From about 100 yards away, and using high-powered binoc ulars, the officers observed defendant Montano standing with some othe r people near the park benches. A few minutes later, Montano got into the driver’s s eat of a truck that was parked close to the benches. Joaquin Gonzalez got into the passenger seat. As Mo ntano began driving away, the officers drove into the park. From 20 or 30 feet away, they saw Montano turn his back slightly and lift the truck’s center console compartment. Montano made some movements with his right hand and then closed the console. Gonzalez also made some
furtive movements near the console.
The officers detained the two men and had them get out of the truck. Bain searched under and behind the driver’s seat, and then noticed that the center console was not completely closed. Inside the console, Bain found a box of sa ndwich bags under the console’s removable tray. Inside the box were six clear plastic bags containing a crystalline substance. Also in side the center console was a digital scale. No glass pipes or syringes were found in the truck or in either man’s possession. Montano had $7 on
him. No customer lists or business records we re found. The crystalline substance proved to consist of 24.6 grams of methamphetamine. Bain opined Montano possessed the meth amphetamine for sale given the amount recovered. An ounce of methamphetamine, which was 28 grams, cost about $1,200. Most users did not purchase or walk around with an ounce at a time due to lack of money
and fear that someone would steal it. Also , the methamphetamine had been divided into3 smaller portions, known as eight balls. Mont ano’s possession of this large quantity of drugs and so little money indicated he ha d not yet made any sales that day. The prosecution charged Montano with possession for sale of a controlled substance (Health & Saf. Code, § 11378). He was acquitted of that charge, but convicted of the lesser included offense of simple posse ssion of a controlled substance, with prior serious felony conviction enhancement findi ngs (Health & Saf. Code, § 11377; Penal Code, § 667, subds. (b)-(i)). 1 The trial court struck one of the prior serious felony conviction findings, but foun d Montano was not suitable for Proposition 36 sentencing and placed him on formal pr obation for three years. CONTENTIONS Montano contends: (1) the trial court erred by refusing to sentence him under Proposition 36; (2) the trial court imposed an unconstitutional prob ation condition; and (3) there was Pitchess 2 error. DISCUSSION
1. Trial court properly denied Proposition 36 sentencing. Montano contends his rights to due proce ss and a jury trial were violated because
the trial court refused to sentence him unde r Proposition 36 based on its own finding that he did not possess the methamphetamine for pe rsonal use. There is no merit to this
claim.

a. Legal principles. “On November 7, 2000, . . . California voters passed Proposition 36, the Substance
Abuse and Crime Prevention Act of 2000. Pr oposition 36 amended st ate law to require that certain adult drug offend ers receive probation, conditione d on participation in and completion of an appropriate drug treatment program, instead of receiving a prison term or probation without drug treatment. (Pen. C ode, § 1210.1.) [¶] Under new Penal Code section 1210.1, subdivision (a), a defendant convicted of a nonviolent drug possession

1 All further statutory references are to the Penal Code unless otherwise specified.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.4 offense ‘shall’ receive probation, provided th e defendant is not rendered ineligible under subdivision (b). A court may not impose in carceration as an additional condition of probation for defendants eligible under the st atute. (Pen. Code, § 1210.1, subd. (a).)” ( People v. Floyd (2003) 31 Cal.4th 179, 183)

. “Proposition 36 outlines an alternative sent encing scheme for those convicted of certain narcotics offenses. In effect, it acts as an exception to the pu nishment specified in an individual narcotics offense.” ( In re Varnell (2003) 30 Cal.4th 1132, 1136.) If a
defendant is sentenced under the scheme and successfully completes both a drug treatment program and the terms of probati on, “the conviction on which the probation
was based shall be set aside and the court sh all dismiss the indictment, complaint, or information against the defendant. In additi on [with certain exceptions], both the arrest
and the conviction shall be deemed never to have occurred.” (§ 1210.1, subd. (e)(1).) Section 1210, subdivision (a), provides: “The term ‘nonviolent drug possession offense’ means the unlawful personal use, po ssession for personal use, or transportation for personal use of any controlled substance . . . . The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any
controlled substance . . . .”
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] ( Apprendi ), the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ( Id . at p. 490.) The high court in

“

Apprendi observed that the Sixth Amendment right to trial by jury, and the Fourteenth Amendment right to due process of law in cr iminal matters, ‘constitutional protections of surpassing importance’ [c itation], together ‘indisputably en title a criminal defendant to “a jury determination that [he or she] is guilty of every elemen t of the crime with which he [or she] is charged, beyond a reasonable do ubt.” ’ [Citation.] Th e court further found that the Sixth Amendment jury trial right a pplied equally to any enhancements to the crime used to impose additional punishment. [Citation.]” ( People v. Mosley (2015) 60 Cal.4th 1044, 1055-1056.)5 b. Background

. Following his conviction, Montano file d a sentencing memorandum requesting Proposition 36 probation under s ection 1210.1. Montano furthe r asked the trial court to
reduce his conviction to a mi sdemeanor and strike his remaining prior serious felony conviction finding. At the sentencing hearin g, the trial court found Montano was not eligible for Proposition 36 probation: “I [find ] by preponderance of th e evidence, that the drugs involved were not possessed for personal use pursuant to the case law; therefore, making Mr. Montano ineligible for probation . . . [under] Prop 36.” The trial court added: “[S]pecifically I will point to the amount of the drugs, 24.6 grams, but more significantly, the drugs were in six separate bags, and there was a digital scale in the central console, and it was 10:00 p.m. at night in an area known by the police for narcotics activity. And the officer testified that in his opinion, methamphetamine was possessed for sale. And also, his testimony that there was no indicia of personal use at
the scene.”

c. Discussion

. Montano contends the tr ial court violated his due process rights under Apprendi because, after the jury conc luded there was insufficient evidence to prove beyond a reasonable doubt that the drugs had been posse ssed for sale, the court itself could not find by a preponderance of the ev idence that the drugs we re possessed for sale. Montano acknowledges the case la w holding that the rule of Apprendi does not apply in the case of ameliora tive statutes that can only decrease a defendant’s sentence. (See People v. Dove (2004) 124 Cal.App.4th 1, 4 [“a f actual finding that a defendant did not possess or transport a controlled substa nce for personal use, for purposes of Proposition 36 sentencing, can be made by the trial court under a preponderance of the evidence standard”]; People v. Glasper (2003) 113 Cal.App. 4th 1104, 1115 [ Apprendi does not apply to determination whether, un der section 1210.1, defendant must be granted probation as conviction was for n on-violent drug possession offense, because statute can only reduce de fendant’s sentence, not increase it]; People v. Barasa (2002)6 103 Cal.App.4th 287, 294 [because se ction 1210.1 “effects a sentencing reduction ” the
rule of Apprendi does not apply].)
As we said in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305, regarding the am eliorative resentencing provisions of the Three Strikes Reform Act of 2012 (§ 1170.126): “The retrospective part of the Act is not constitutionally required, but an act of lenity on the part of the electorate. It does not provide for wholesale resentencing of eligib le petitioners. Instead, it provides for a proceeding where the original sentence may be modified downward. Any facts found at such a proceeding, such as dangerousness, 3 do not implicate Sixth Amendment issues.” Montano argues, however, that these cases are no longer good law in the aftermath
of Alleyne v. United States (2013) 133 S.Ct. 2151 [186 L.Ed.2d 314] ( Alleyne ), which
held that Apprendi applies to both increases in statut ory maximum sentences as well as to increases in mandatory minimum sentences. Alleyne held: “Any fact that, by law, increases the penalty for a crime is an ‘eleme nt’ that must be subm itted to the jury and found beyond a reasonable doubt. [Citations .] Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.” ( Id . at p. 2155.)
But Alleyne was construing a criminal stat ute, 18 U.S.C. § 924(c)(1)(A), which proscribes “using or carrying a firearm in relation to a crime of violence . . . . Section 924(c)(1)(A) provides, in relevant part, that anyone who ‘uses or carries a firearm’ in relation to a ‘crime of violence’ shall: [¶] (i) be sentenced to a te rm of imprisonment of not less than 5 years; [¶] (ii) if the firear m is brandished, be sentenced to a term of imprisonment of not less than 7 years; and [¶ ] (iii) if the firear m is discharged, be sentenced to a term of imprisonmen t of not less than 10 years.” ( Alleyne , supra , 133 S.Ct. at pp. 2155-2156.) The jury found Alleyne had used or carried a firearm during

3 The “dangerousness” finding under secti on 1170.126, subdivision (f), is a factor that disqualifies a defendant for ameliora tive treatment in the same way that the “possession for sale” finding disqualified Montano from ameliorative treatment under section 1210.1.7 a crime of violence, but did not reach any finding as to whether the firearm had been brandished. Alleyne claimed on appeal th at, given these circumstances, “raising his mandatory minimum sentence based on a senten cing judge’s finding that he brandished a
firearm would violate his Sixth Ame ndment right to a jury trial.” ( Id . at p. 2156.) Alleyne does not undermine the ca se law establishing that Apprendi is inapplicable to a Proposition 36 ineligibility determination because secti on 1210.1 does not establish a mandatory minimum term. It is , rather, an alternative senten cing scheme that only offers the possibility of an alternative lesser term to qualifying defend ants. Cases construing the similarly-structured Three Strikes Reform Act of 2012 (§ 1170.126) have reached the same conclusion. (See People v. Guilford (2014) 228 Cal.App.4th 651, 663 [ Alleyne
does not aid defendant because “denial of a [Three Strikes recall petition sentence under § 1170.126(f)] does not increase the mandato ry minimum sentence for a defendant’s crime”]; see also People v. Osuna (2014) 225 Cal.App.4t h 1020, 1040 [noting Alleyne , but holding: “Because a determination of eligibility under secti on 1170.126 does not implicate the [right to jury tria l aspect of the] Sixth Amendm ent, a trial court need only find the existence of a disqualifying factor by a preponderance of the evidence.”].) Montano is simply incorrect in his assump tion that he was entitled to a jury trial to determine if the drugs found in his possession were for personal use for purposes of determining Propositi on 36 eligibility. The trial c ourt did not err by finding him ineligible for the special probatio n terms offered by Proposition 36.
2. An unconstitutional probation condition must be modified

. Montano contends, and the Attorney Gene ral properly concedes, that one of his probation conditions must be modified in order to avoid unconstitutional vagueness. “A probation condition ‘must be sufficien tly precise for the pr obationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” ( In re Sheena K . (2007) 40 Cal.4th 875, 890.) “The rule of fair warning consists of ‘the due process concepts of preventing arbitrary la w enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process8 clauses of the federal and California Constituti ons. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’ [Citation. ] The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must neces sarily guess at its meaning and differ as to its application.” [Citation.]’ [Citation.]” ( Ibid .)
Sheena K. held a probation condition forbiddi ng the minor’s association with “anyone disapproved of by pr obation” was unconstitutional unle ss modified to include an explicit knowledge requirement. The Cour t of Appeal did so by “inserting the qualification that defendant have knowledge of who was disapproved of by her probation officer.” ( Id . at p. 892, italics added; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102 [probation condition re quiring defendant to refrain from associating with users and sellers of narcotics was “not sufficiently narrowly drawn because it limits appellant’s association with persons not known to him to be users and sellers of narcotics”].) As one of Montano’s probation conditions , the trial court ordered him to “stay away from places where [drug] users[,] buyers or sellers congregate.” As the Attorney General properly concedes, this condition must be modified to read: “stay away from places where he knows [drug] users, buyers or sellers congregate.” We will order modification of this probation condition.
3. Review of in camera Pitchess hearing. Montano requests review of the tria l court’s ruling on his motion seeking discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531. Review of the in camera hearing by this court reveals no abuse of the trial court’s discretion. (See People
v. Mooc (2001) 26 Cal.4th 1216, 1232.) Th e hearing was properly conducted; the
custodian of records described the records that were searched and the trial court described the nature of all the compla ints against the officers.9 DISPOSITION Montano’s probation condition ordering him to “stay away from places where [drug] users[,] buyers or sellers congregate” is modified to r ead: “stay away from places where he knows drug users, buyers or sellers co ngregate.” Except to the extent of this modification, the judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

ALDRICH, J.

EGERTON, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.