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Name: People v. Dove
Case #: E033907
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 11/15/2004
Subsequent History: Revw. den. 2/2/05

A trial court may sentence a defendant to prison rather than granting probation under Proposition 36 even where a jury has acquitted the defendant of possession of cocaine base for sale. Here the defendant was charged with possession, possession for sale, and transportation of cocaine base; the jury convicted him of possession and transportation but acquitted him of possession for sale. However, at sentencing the trial court refused to find that the defendant possessed the drugs for personal use, and accordingly sentenced him to prison rather than placing him on probation. The appellate court upheld the sentence, holding that a trial court can make such a finding under Proposition 36 using the preponderance of the evidence standard, because neither Apprendi v. New Jersey (2000) 530 U.S. 466 nor Blakely v. Washington (2004) 124 S.Ct. 2531 applies to a downward sentence departure.