Trial court did not err by denying drug probation (Pen. Code, § 1210.1) based on its finding, by a preponderance of the evidence, that defendant possessed drugs for sale. A jury acquitted Hudson of possessing heroin, meth, and cocaine base for sale but found him guilty of the lesser included offenses of simple possession of each. At sentencing, the trial court found by a preponderance of the evidence that he possessed the drugs for sale, denied drug probation, and sentenced Hudson to county prison. Hudson appealed. Held: Affirmed. Section 1210.1 mandates drug probation—probation conditioned on participation in a drug treatment program—for an otherwise eligible defendant with a conviction for a nonviolent drug possession. (Pen. Code, § 1210.1, subd. (a), (b) [listing disqualifying criteria].) Possession for sale is excluded. Although the jury acquitted Hudson of possession for sale and convicted him of simple possession, it did not make a specific finding of possession for personal use. It could have convicted him of possession for purposes other than personal use, such as for use against a victim. In similar circumstances, other courts have held that absent a specific jury finding of personal use, the burden is on the defendant at sentencing of persuading the court that his conduct involved only personal use in order to establish eligibility for drug probation. (People v. Harris (2009) 171 Cal.App.4th 1488 and People v. Dove (2004) 124 Cal.App.4th 1, 11.) Here, the trial court’s finding that Hudson possessed the drugs for sale and was therefore precluded from a grant of drug probation was supported by substantial evidence.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C076512.PDF