Filed 3/12/18 P. v. Aleqabi CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
MOHAMMAD ALEQABI,
Defendant and Appellant.

A148446

(San Mateo County
Super. Ct. No. SC080363A)


Mohammad Aleqabi appeals from a judgment of conviction and sentence imposed after a jury found him guilty of possession of marijuana for sale. (Health & Saf. Code, § 11359.) He contends (1) the trial court erred in its instruction to the jury as to his defense to the charges; (2) he received ineffective assistance of counsel because his attorney did not object to certain statements in the prosecutor’s closing argument or to the prosecutor’s elicitation of opinion testimony from police officers; and (3) the prosecutor impermissibly vouched for the police officers. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information charged Aleqabi in four counts. Count 1 alleged that he furnished marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)). Count 2 asserted that he transported marijuana (§ 11360, subd. (a)). Count 3 charged him with possession of marijuana for the purpose of sale (§ 11359). And count 4 contended he possessed concentrated cannabis (§ 11357, subd. (a)). The information also alleged that Aleqabi committed these crimes while he was released on his own recognizance (Pen. Code, § 12022.1).
The matter proceeded to trial by a jury.
A. Prosecution Evidence
1. Aleqabi’s Possession and Transportation of Cannabis as Charged
While on patrol on February 13, 2014, City of Belmont Police Officer Andrew Balady conducted a traffic stop of a blue Lexus with expired registration tabs on Missouri license plates. Aleqabi was driving, and his passenger was Alejandro Bernal.
Officer Balady smelled the odor of unburnt marijuana coming from the car. Aleqabi said he had approximately a pound of marijuana in the trunk, as well as “hash” (concentrated cannabis). He claimed it was “Prop 215 stuff,” told Balady to get a warrant, and noted there was a criminal case pending against him in Santa Clara County for possession of marijuana for sale.
Officer Balady determined that the car had been registered in California, but the registration was suspended. He also learned that passenger Bernal was on probation with a search clause.
In an initial search of the passenger compartment, police found a translucent container of concentrated cannabis. Aleqabi said that everything in the car belonged to him.
A continued search of the car revealed marijuana in leaf and concentrated forms, packaging materials, cash, receipts, and ledgers. In particular, a cooler in the trunk contained marijuana, containers of concentrated cannabis (marked “Dream Queen” and “Tahoe 0G40”), a digital scale with concentrated cannabis residue, and baggies. Promotional fliers for concentrated cannabis referred to “Winterization” and “Absolute Xtracts.” A signed handwritten note mentioned “payment of $400 from Mohammad Aleqabi for deposit to Trung Nguyen.” “Pay/owe” sheets referenced Big Bud, Deadhead, OG, and Purple Cush, and stated that “Deadhead hash 41 [grams] at $10 per gram” and “three units at 2K each equals 6K not paid amount.” Also found was a ledger labeled “Grow Book” and a notebook describing lighting conditions for cultivating marijuana.
Aleqabi had a physician’s referral for medical marijuana in his name. Police recovered $172 from the car and his person, as well as a gray cell phone and a black cell phone. The California license plates for the vehicle were also found inside the car.
Based on his training, and in consultation with Special Agent Scott Mueller of the Narcotic Task Force, Officer Balady concluded that the marijuana was possessed for the purpose of sales.
Aleqabi was arrested for possession of marijuana for sale and transported to the Belmont Police Department. There, Aleqabi waived his constitutional rights and gave a recorded statement, which was played for the jury at trial. He asserted that the “majority” of the marijuana was for his personal use. He said he obtained the marijuana directly from a grower, and never said he had grown it himself. He claimed he used the Missouri license plates to avoid police detection.
Aleqabi gave police the pass code to his gray cell phone, and texts from that phone suggested Aleqabi was engaging in marijuana business in multiple California cities. Aleqabi said that the black phone taken from the backpack was “dead;” when investigators turned it on, Aleqabi refused to give investigators the pass code and told them to get a warrant.
The parties stipulated that the seized contraband included over 450 grams of marijuana, as well as concentrated cannabis.
2. Aleqabi’s Santa Clara County Case
Officer Nicholas Epidendio of the Sunnyvale Police Department testified about Aleqabi’s case in Santa Clara County for possession of marijuana for sale.
While on patrol around midnight on December 3, 2013, Officer Epidendio observed Aleqabi urinating near a tree on the street median. Aleqabi claimed he was from Missouri, performing “consulting” work in the area, and living out of his blue Lexus parked nearby. He directed the officer to look in the Lexus for his identification.
Officer Epidendio opened the car door, smelled marijuana, and saw a marijuana pipe inside. Two containers inside the vehicle contained concentrated cannabis. On the floor by the rear seat, there was a digital scale, packaging materials, and small circular containers that were labeled “.5” and contained a brown substance. Inside a box, the officer found marijuana seeds labeled “Sweet Tea,” “Green Poison,” “Cream Carmel Auto,” “OG Cush,” and “Blue Dream,” along with capsules that Aleqabi said contained concentrated cannabis. The officer also found fliers that promoted “Absolute Xtract” and referred to “winterization” of refined marijuana. In the car’s trunk, the officer found two yellow receipts addressed to “Mohammed” from “TreeMed” – one of which detailed a November 2013 sale of 10 pieces each of “Blue Dream” and “XJ13” for $225, while the other detailed the sale of cooking oil, “Cali Creamer” ointment, and “CaliCream” body balm and lip balm for $170.
Aleqabi had a physician’s recommendation for medical marijuana. He said he was “taking these new products that are winterized” to medical marijuana dispensaries hoping to sell them, and worked for a “mom and pop” organization, but did not claim to be a member of a cannabis collective. Officer Epidendio concluded the marijuana was not for Aleqabi’s personal use.
3. Drug Task Force Expert Guiney
San Mateo County Sheriff’s Sergeant Dan Guiney testified that he was a member of the Narcotics Task Force for over 10 years and had investigated several hundred cases of drug trafficking. The court found that he was qualified to testify as an expert on the possession of marijuana for sale and the possession of marijuana for personal use.
Sergeant Guiney opined that the marijuana seized in this case was worth $1,500 to $3,000 and constituted a four-to-seven-month supply for personal ingestion. In his view, this amount was too large for merely personal use. In particular, “the amount and the unused packaging material and the fact there was a scale would indicate it is not for, in my opinion, is not possessed for legal purposes.” To the contrary, Guiney opined, it was primarily possessed for purposes of sales and only in part for personal use. With respect to the Sunnyvale case, Guiney opined that the marijuana seized was also possessed for purposes of sale as well as personal use.
Sergeant Guiney further testified that medical marijuana collectives are nonprofit groups of primary medical marijuana caregivers, who vote and keep records. The law allows primary caregivers to be reimbursed for true costs of the collective and out of pocket expenses. However, no evidence was presented to Guiney indicating that Aleqabi was a member of a nonprofit medical marijuana collective. Guiney also noted there were no medical marijuana dispensaries in San Mateo County.
Sergeant Guiney described the texts found on Aleqabi’s cell phone. The majority of the texts concerned concentrated cannabis, “hash or wax or butter or shatter.” Other texts referenced “bud,” growing or cultivating marijuana, “dropping off [product] to clubs,” and marijuana “pricing,” and mentioned prices such as “$2,300, $1500 and $800.” One text referenced the purchase of a police scanner. Other texts mentioned Aleqabi’s travels to Los Angeles, San Francisco, Santa Clara, the Peninsula, and St. Louis. Texts mentioned “storefronts” in Campbell and Santa Clara, and sales to individuals in parking lots and in cars. One text stated, “ ‘How do we take care of this? You promised. I fronted you the extra $2300. I see that before Christmas.’ ”
B. Defense Case
The defense called one witness, Christopher Conrad, who was accepted by the court as an expert in the “interpretation of Prop 215 and related issues.” Conrad opined that Proposition 215 provides immunities to qualified patients for possession of marijuana under section 11357 and cultivation of marijuana under section 11358. In addition, qualified patients can possess concentrated cannabis.
Conrad further opined that cannabis collectives can be informal, they are not required to keep paperwork, and members of a collective can be reimbursed for costs they may have incurred for expenses and services provided. However, Conrad did not opine that Aleqabi was a member of a collective, or refer to any evidence suggesting he was.
Conrad opined that the amount of marijuana a qualified patient can ingest per day can vary “greatly,” and scales are “very common” for measuring individual use. However, Conrad conceded, the receipts, baggies, scale, and marijuana introduced at Aleqabi’s trial were also consistent with marijuana sales.
C. Jury Verdict and Sentence
The jury declared it was deadlocked on count 2 (transporting marijuana) and count 4 (possessing concentrated cannabis), but found Aleqabi guilty on count 3 (possession of marijuana for sale). The court declared a mistrial with respect to counts 2 and 4 and found the on-recognizance allegation true.
The court suspended imposition of sentence and placed Aleqabi on probation for three years. This appeal followed.
II. DISCUSSION
In his opening brief, Aleqabi represents that his defense at trial was that he possessed the marijuana “in his role as part of a marijuana collective and for his own use as prescribed by a physician.” (Italics added.) That is inaccurate. Although Conrad testified about marijuana collectives, there was no argument by defense counsel at trial – and no evidence – that Aleqabi was acting as part of a marijuana collective and had a defense for that reason. Defense counsel’s assertion in opening statement and closing argument was simply that Aleqabi possessed the marijuana for his personal medical use rather than for sale.
For this and other reasons, Aleqabi’s arguments on appeal have no merit.
A. Jury Instructions
Aleqabi contends the court failed to instruct the jury on his defense, because it did not inform the jury that selling marijuana without a profit, in accordance with the Marijuana Medical Program Act (§§ 11362.7-11362.83), was legal. Instructional error occurs only if it is reasonably likely that the jury misunderstood the law in light of all the instructions, the entire record, and the arguments of counsel. (People v. Kelly (1992) 1 Cal.4th 495, 525–526; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
To make sense of what occurred at the trial and what Aleqabi now claims on appeal, we begin with a brief summary of relevant law.
1. Law
In 1996, California voters passed Proposition 215 and adopted the Compassionate Use Act of 1996, codified at section 11362.5 (CUA). Section 11362.5 provides in pertinent part: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d).) By its terms, the CUA does not apply to the crime of possession for sale (§ 11359).
In 2003, the Legislature enacted the Medical Marijuana Program Act (MMP). In section 11362.765, the MMP added immunity for, inter alia, section 11357 (possession of concentrated cannabis, charged here as count 4), section 11359 (possession of marijuana for sale, charged as count 3), and section 11360 (transporting marijuana, charged as count 2), to the following persons: (1) qualified patients who transport or possess cannabis for personal medical use; (2) designated primary caregivers who transport, process, administer, deliver, or give away cannabis for medical purposes in amounts not exceeding those established in section 11362.77, subdivision (e), but only to the primary caregiver’s qualified patient or identification cardholder; and (3) certain assistants as specified in the statute. The statute does not “authorize any individual or group to cultivate or distribute cannabis for profit,” although a primary caregiver may receive compensation for actual expenses. (§ 11362.765, subd. (a), (c).)
As relevant here, section 11362.765 offered Aleqabi a potential defense to the charges he faced, upon evidence that he, as a qualified patient, transported and possessed cannabis only for his personal medical use. As we shall see, the court instructed the jury on this defense.
The MMP also added a defense for members of marijuana collectives in section 11362.775, which is the subject of Aleqabi’s appeal. Section 11362.775 provides: “[Q]ualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannibis for medicinal purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, . . . 11359, 11360 . . . .”
The MMP allows qualified patients, valid identification cardholders, and their respective primary caregivers to form nonprofit groups and, through those groups, pay and receive compensation and reimbursement from each other in amounts necessary to cover the overhead costs and operating expenses of cultivating and providing medical marijuana to the qualified patient and cardholder members of the group. (People v. London (2014) 228 Cal.App.4th 544, 554 (London).) The MMP does not allow qualified patients, identification cardholders, or primary caregivers to earn a profit from the cultivation or distribution of medical marijuana, whether through a cooperative, collective, or otherwise. (Id. at p. 553.)
Thus, the MMP cultivation defense requires a defendant to show (1) he or she is a member of a collective or cooperative, (2) the collective or cooperative is comprised of qualified patients who have been prescribed marijuana for medicinal purposes (and primary caregivers) and collectively associate to cultivate marijuana, and (3) the collective or cooperative is not a profit-making enterprise. (See People v. Jackson (2012) 210 Cal.App.4th 525, 529; People v. Baniani (2014) 229 Cal.App.4th 45, 59 (Baniani).
As we shall see, there was no evidence or argument to support a defense under section 11362.775.
2. Court’s Instruction
The court provided counsel with its proposed jury instructions, based on the instructions proposed by the parties. Defense counsel did not object or seek modification to those instructions (except to decline instructions on lesser-included offenses, not relevant here). Accordingly, the court instructed the jury with its modified versions of standard instructions.
Based on CALCRIM No. 3412 (Compassionate Use, § 11362.5) and, at defense request, language from CALJIC 12.24.1 (Defense of Compassionate Use), the court instructed: “Possession, transportation, or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess, transport, or cultivate marijuana for personal medical purposes or as the primary caregiver of a patient with a medical need when a physician has recommended or approved such use. The amount of marijuana possessed, transported or cultivated must be reasonably related to the patient’s current medical needs and the method, timing and distance of the transportation must have been reasonably related to the patient’s then current medical needs and the method, timing and distance of the transportation must have been reasonably related to the patient’s then current medical needs.”
The court added, at defense request, the following based on CALJIC No. 12.24.1. “The term ‘qualified patient’ means a person who is entitled to the protections of the compassionate use law but who does not have an identification card issued by the state . . . [¶] . . . A ‘primary caregiver’ is an individual designated by a person who may legally possess or cultivate marijuana and the caregiver has consistently assumed responsibility for the housing, health, or safety of that person. A defendant asserting ‘primary’ status must prove at a minimum that he or she consistently provided caregiving, independent of any assistance in taking medical marijuana, at or before the time he or she assumed responsibility of assisting with the medical marijuana.”
The court also added the following, apparently at defense request: “A ‘Collective’ is an organization that facilitates the collaborative efforts of patient and caregiver [members] who associate within the State of California in order to collectively or cooperatively cultivate marijuana for medical purposes. A collective need not have any particular legal form, although it may organize as a nonprofit business to carry out its activities.” The special instruction continued: “To decide if marijuana is transported or possessed solely on behalf of a lawful collective or cooperative you may consider the following factors among others: [¶] Was the amount of marijuana reasonably related to the members of the collective current medical needs? [¶] Were members who associated collectively or cooperatively to cultivate, possess or transport marijuana all qualified medicinal marijuana patients? [¶] Was the defendant a qualified patient member of the collective? [¶] Had the collective obtained a business license? [¶] Was the collective a non-profit corporation? [¶] Was the collective formed, organized and registered in compliance with any applicable local ordinances or state government agency rules or regulations? [¶] Does the collective obtain or distribute marijuana only to qualified collective patients? [¶] Does the collective obtain or distribute marijuana cultivated only by its members? [¶] Does the collective have any financial records? [¶] Does the collective have any process by which it is accountable to its members? [¶] How many people are members of the collective? are Qualified patients? are Caregivers? [¶] What is the cost of obtaining, processing and distributing marijuana to members? [¶] Does anyone receive a salary to operate the Cooperative? [¶] What reasonable services [may] be reimbursed to cultivators? [¶] What out of pocket expenses may be reimbursed?” (Italics added.)
The special instruction concluded, from CALCRIM No. 3412: “The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess, transport, or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.”
Thus, the court instructed on a defense to all the charges Aleqabi faced, as a qualified patient who possessed the seized cannabis for his personal medical use (§§ 11362.5, 11362.765) – which is exactly what defense counsel had asserted in opening statement and closing argument. The court also instructed the jury on the definition of a primary caregiver and a collective, but it did not instruct – nor did the defense apparently ever request – a specific instruction that members of a collective may make sales to other members of the collective if not for a profit.
Aleqabi complains that the court therefore erred. In particular, he urges that the instructions failed to inform the jury that marijuana “sales” are legal if not for profit, “qualified [patients are] entitled to receive reasonable compensation” for marijuana production, and the law allows reasonable compensation as part of the collective cultivation of marijuana.
3. Waiver
Aleqabi did not request an instruction on the collective cultivation defense under section 11362.775, or any instruction containing the specific points he now says should have been included. Nor did he object to the instruction given by the court or propose any modification to the instructions the court said it would give. His claim of error is therefore forfeited. (E.g., People v. Guiuan (1998) 18 Cal.4th 558, 570.)
4. No Sua Sponte Duty or Error
Aleqabi asserts that the trial court should have instructed sua sponte on legal principles that are necessary for a jury’s understanding of the case. (Citing People v. Breverman (1998) 19 Cal.4th 142, 154 [involving lesser offenses].) At issue here, however, is a defense. A court has a sua sponte duty to instruct on a defense only if there is substantial evidence supporting the defense and either the defendant is relying on it or it is not inconsistent with the defendant’s theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424; Baniani, supra, 229 Cal.App.4th at pp. 52–53; London, supra, 228 Cal.App.4th at p. 565.)
Here, substantial evidence did not support a cultivation defense under section 11362.775. Although there was evidence Aleqabi was a qualified patient, there was no evidence that he was a member of a cooperative or collectively associated with others to cultivate marijuana. There was no evidence that he sold marijuana only to fellow members of his cooperative or collective. There was no evidence that the money he was receiving for marijuana was merely a reimbursement of costs to which he would be entitled under the MMP. Nor was there any evidence that he was not making any profit off of his transactions.
Because Aleqabi did not produce evidence supporting a cultivation defense under section 11362.775, the court did not have a sua sponte duty to instruct on the defense, or err in failing to tell the jury that marijuana “sales” are legal if not for profit, that qualified patients are entitled to reasonable compensation for marijuana production, or that the law allows reasonable compensation as part of the collective cultivation of marijuana. (London, supra, 228 Cal.App.4th at p. 566 [defendant did not raise a reasonable doubt supporting his cultivation defense, in the absence of evidence that his collective operated as a nonprofit organization, sold only to qualified patient members of the collective, and was comprised solely of qualified patients, valid identification cardholders, or primary caregivers]; People v. Solis (2013) 217 Cal.App.4th 51, 54–59 [insufficient evidence to support MMP defense that defendant was lawfully cultivating marijuana for a nonprofit collective, where defendant provided no evidence of actual overhead costs or expenses that had to be reimbursed].)
Aleqabi’s reliance on Baniani, supra, 229 Cal.App.4th 45, is misplaced. There, the court ruled that the defendant was entitled to an instruction on a defense under the MMP because he presented evidence that he had started a medical marijuana cooperative as a non-profit corporation, acquired a seller’s license, did not make a profit on marijuana sold to qualified patients, and the money exchanged was only to reimburse growers for costs. (Id. at pp. 59–60.) Aleqabi presented no such evidence.
Aleqabi fails to establish instructional error.
B. Prosecutor’s Closing Argument
Aleqabi complains that trial counsel was ineffective for failing to object to the prosecutor’s statements in closing argument that “compassionate use” and the CUA did not apply to the count 3 possession for sale charge, and that it was unlawful to sell marijuana.
1. Law
To establish ineffective assistance of counsel, the defendant must prove that his or her attorney failed to act in a manner expected of a reasonably competent attorney, and counsel’s acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687.) We “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” (id. at p. 689), and the defendant must show that counsel’s omission “cannot be explained on the basis of any knowledgeable choice of tactics.” (People v. Floyd (1970) 1 Cal.3d 694, 709, overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258.)
2. Prosecutor’s Statements
Without a defense objection, the prosecutor argued: “This charge [for possession of marijuana for sale under count 3] does not have compassionate use as a defense. You cannot apply compassionate use to this charge because you cannot sell. The law is very very clear. You cannot sell marijuana. I don’t care that, you know, Mr. Conrad [defense expert] tried to tell you that it was okay. He admitted it has to be nonprofit. Any sale is not a sale. It is a reimbursement of the costs of your doing business. . . .” Later in closing argument, without defense objection, the prosecutor stated: “Count 4 [possession of concentrated cannabis] is simply the same thing, but it has to do with Cannibis [sic] instead of just marijuana. He possessed it. He knew he had it. Usable amount. Just enough to be used. The CUA does apply to this, so the CUA applies to Count 2 [transporting marijuana] and Count 4 [possession of concentrated cannabis], but not to Count 3 [possession of marijuana for sale]. Okay.” (Italics added.)
3. No Ineffective Assistance
Aleqabi argues that the prosecutor misstated the law, and his trial attorney should have objected, because it is not true that all sales of marijuana are illegal. He reminds us that, under the collective defense, medical marijuana can be purchased from a collective so long as the sale is not for profit. (Citing Baniani, supra, 229 Cal.App.4th at p. 61.) We conclude the jury would not have interpreted the prosecutor’s statements in a way that misled them on the law as relevant to this case.
Based on the totality of the prosecutor’s statements to the jury and the record as a whole, a jury would reasonably construe the prosecutor’s comments to mean only that sales for profit were unlawful and not subject to a defense. Throughout the trial, the prosecutor distinguished for-profit sales from transfers that merely involved an exchange for overhead costs and operating expenses. For example, the prosecutor asserted in opening statement: “It is a defense to possession and cultivation. Not a defense to sales. There is no provision in the law that allows marijuana to be sold for money by anyone other than the qualified caretaker who is buying it for their patients and being reimbursed for their expenses, or a grower who is growing for his cooperative, or collective, and being reimbursed for the cost of raising that. That is only money that can be exchanged.” (Italics added.) And immediately after saying in closing argument that “[y]ou cannot sell marijuana,” the prosecutor explained that the defense expert admitted “it has to be nonprofit,” “[a]ny sale is not a sale,” and “[i]t is a reimbursement of the costs of your doing business.” (Italics added.) From these comments, it is clear that when the prosecutor said there can be no “sale” of marijuana, she meant there can be no for-profit sales.
This is a correct statement of the law. Aleqabi’s defense – under section 11362.5, section 11362.765, and the instructions to the jury – does not permit anyone, even a qualified patient, primary caregiver, or collective, to sell marijuana for profit.
The prosecutor’s statement later in closing that “the CUA” applied to counts 2 and 4, but not to count 3, would reasonably be construed as follows: if the jury found Aleqabi was transporting marijuana as to count 2 or possessing concentrated cannabis as to count 4, the defense would apply if the drugs were possessed or transported for personal medical purposes; but if the jury found that Aleqabi possessed the drugs for sale as to count 3, he had no defense.
This was also a correct statement of the law, as relevant here. Aleqabi’s purported defense under section 11362.765 and the court’s instructions would not apply to the charge of possession for sale if the marijuana was possessed to sell for a profit. And while it is true that there is immunity for possessing cannabis for a “sale” in the sense of an exchange of marijuana between qualified patients and their primary caregivers (§ 11362.765), or among members of a cooperative (§ 11362.775), for an amount no more than reimbursement of costs of overhead and expenses, that defense was not argued in this case, and was irrelevant anyway in light of the state of the evidence. In essence, the prosecutor’s statement was correct for purposes of the case before the jury, even if in other cases, under different facts, it might not be.
Accordingly, Aleqabi has not established that there was a reasonable likelihood the jury was misled by the prosecutor’s comments, or that his trial attorney was incompetent for not objecting to them.
C. Officers’ Opinion Testimony
Aleqabi contends Sergeant Guiney, Officer Balady, and Officer Epidendio improperly testified that Aleqabi was guilty and that the seized contraband was possessed for sale rather than for personal use. Because Aleqabi’s trial counsel did not object to this testimony, Aleqabi argues that he did not receive effective assistance of counsel. Aleqabi’s argument has no merit.
1. Sergeant Guiney’s Testimony
According to Aleqabi, Sergeant Guiney testified there was “no doubt” in his mind that Aleqabi was guilty of possession for sales, so he impermissibly told the jury how the case should be decided. (Citing People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) But Sergeant Guiney never opined that Aleqabi was guilty. Instead, after being accepted by the court as an expert witness as to the possession of marijuana for sale or personal use, Guiney opined that the marijuana “was possessed primarily for the purpose of sale; however, there was some that was going to be used by the defendant.” It was as to “that opinion” that Guiney said he had “no doubt.” (Italics added.)
It has been established for decades that an officer may opine, based on his or her experience, training, and judgment, that drugs were possessed for purposes of sale rather than personal use. (People v. Newman (1971) 5 Cal.3d 48, 53 [“experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual”], disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862; People v. Harris (2000) 83 Cal.App.4th 371, 375 [proper for police officer to opine that defendant possessed marijuana for sale]; see also People v. Romo (2016) 248 Cal.App.4th 682, 697 [expert witness properly testified that defendant was not a “blind mule” for transporting three pounds of heroin and 18 pounds of methamphetamine in his car].) Although an expert cannot opine on whether the defendant is guilty or innocent, admissible opinion testimony is not objectionable just because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805; Romo, at p. 697.)
Sergeant Guiney also testified that “the amount and the unused packaging material and the fact there was a scale would indicate it is not for, in my opinion, is not possessed for legal purposes.” (Italics added.) Again, however, the context of the testimony makes clear that Guiney was expressing his view on a question of fact based on his experience and expertise, and not making a pronouncement that Aleqabi was guilty of the charged crimes. (Evid. Code, § 805.)
2. Testimony of Officers Balady and Epidendio
In his opening brief, Aleqabi contended that Officer Balady impermissibly testified that Aleqabi was “guilty.” Although respondent corrected Aleqabi on this point in its respondent’s brief, Aleqabi doubled down on his accusation in his reply brief, representing that “Officer Balady explicitly told the jury multiple times that Mr. Aleqabi was guilty of the count three charge of marijuana for sale.”
Aleqabi misstates the record. Officer Balady testified that, during the course of his investigation and search of Aleqabi’s car – which revealed marijuana in leaf and concentrated forms, packaging materials, cash, receipts, and ledgers – he formed a belief that the marijuana was possessed for sale rather than personal use. He did not say that Aleqabi was “guilty;” he provided a reason for arresting Aleqabi and an opinion with respect to the quantity of the material.
Aleqabi also represents that “Officer Epidendio testified about stopping Mr. Aleqabi in 2013 in Santa Clara County, and explicitly stated that Mr. Aleqabi was guilty of sales in that case.” (Italics added.) Again, Aleqabi misstates the record. Epidendio testified that he formed the opinion that the marijuana was possessed for purposes of sales, and that there was illegal trafficking, in the context of what he observed at the scene and what Aleqabi said to him. He did not testify that Aleqabi was “guilty” in that case or in the present case.
Defense counsel was not ineffective for failing to object to the officers’ testimony that the marijuana was possessed for sale. In the first place, the officers reported their conclusions based on their perceptions of the amount of contraband and the attendant circumstances, in light of their experience, training, and judgment as police officers. (See Newman, supra, 5 Cal.3d at p. 53; Harris, supra, 83 Cal.App.4th at p. 375.)
Furthermore, even if the officers’ testimony was objectionable as an improper lay opinion, defense counsel may well have had a tactical reason not to object. Counsel could have reasonably expected that the prosecution’s expert witness, Sergeant Guiney, would offer the same conclusion anyway, and objecting to the other officers’ testimony would have only highlighted the conclusion that Aleqabi was possessing the drugs for sale.
Finally, even if defense counsel’s failure to object fell short of acceptable conduct, Aleqabi fails to establish prejudice. Given Sergeant Guiney’s admissible expert witness testimony that the marijuana was possessed mostly for sale, the fact that the other officers concurred could not have made much of a difference. After all, there was overwhelming evidence that Aleqabi did, in fact, possess the marijuana for purposes of sale: he had over a pound of leaf marijuana as well as concentrated marijuana, a scale, packaging materials, promotional fliers for marijuana products, cash, receipts, and ledgers; he admitted that he put Missouri license plates on his car to avoid police detection; text messages on his cell phone referred to “bud,” growing or cultivating marijuana, pricing marijuana, buying a police scanner, and selling to individuals in parking lots and cars; and he admitted to Officer Balady that only a “majority” of the marijuana was for his personal use. Aleqabi fails to demonstrate error.
D. Vouching
Aleqabi contends the prosecutor committed misconduct by vouching for Officer Balady, and that trial counsel was ineffective for failing to object.
1. Law
Impermissible vouching occurs when a prosecutor tries to bolster a case by invoking personal prestige, depth of experience, or the prestige or reputation of the prosecutor’s office. (People v. Linton (2013) 56 Cal.4th 1146, 1207.) It is also improper for the prosecutor to suggest there are facts available to the government, but not before the jury, that corroborate a witness’s testimony. (Ibid.) Thus, a prosecutor is prohibited from vouching for the credibility of witnesses by referring to evidence outside the record. (People v. Turner (2004) 34 Cal.4th 406, 431–432 [prosecutor’s repeated statements to the jury that he had used the court-appointed experts in the past and they were “honest men” and “good psychologists who do a thorough job”].) On the other hand, the prosecutor is permitted to offer the jury reasonable inferences that may be drawn from the evidence. (People v. Morales (2001) 25 Cal.4th 34, 44.)
2. Prosecutor’s Statements
Aleqabi points to the following comments by the prosecutor, to which trial counsel did not object.
a. Opening Statement
During opening statement, the prosecutor told the jurors: “Officer Balady[,] you will hear[,] did a fine job according to Officer Mueller.” Officer Mueller did not testify at the trial.
Asserting in opening statement that a witness will testify that an officer did a good job is not improper vouching. Furthermore, there is no indication that, at the time the prosecutor made her assertion, she lacked a good faith belief that Officer Mueller would, in fact, testify at the trial and testify specifically that Officer Balady did a fine job. There is no indication of prosecutorial misconduct.
b. Direct Examination
On direct examination, the prosecutor asked Officer Balady what happened after he filed a police report: “Q. Okay. Now, does every police report that is [sent] to the District Attorney’s office result in a filed case? [¶] A. No, not at all. [¶] Q. Have you ever had police reports go to the District Attorney’s Office and get a report back that – I mean get a letter back that says I am rejecting this case and not filing it for the following reasons? [¶] A. Yes. [¶] Q. Have you ever had the District Attorney’s office [send] you the rejection of a case and say I think you should do the following follow-up and then maybe I would be able to file the case? [¶] A. Yes, I have. [¶] Q. Okay. And did that happen in this case? [¶] A. No.” Balady also stated that he does not make charging decisions: “I will submit the case to the District Attorney’s office to let them review whether or not it is a matter worth going through with.”
Aleqabi contends this line of questioning was improper because it implied that the case would not have been filed by the District Attorney’s office if Aleqabi had a defense under the CUA and the MMP. By implying that the District Attorney’s office only pursued cases “worthy” of being pursued, Aleqabi argues, the prosecutor insinuated through her questioning that it was not just her belief that Aleqabi was guilty, but the belief of the entire District Attorney’s office.
There is nothing prejudicial about the cited line of questioning. Certainly it would not come as a shock to the jury that the District Attorney’s office does not pursue every single case, or that the District Attorney’s office believes the defendants it chooses to prosecute actually committed the charged crimes.
Aleqabi’s reliance on United States v. Cummings (9th Cir. 1972) 468 F.2d 274 is misplaced. There, the prosecutor took it upon herself to explain to the jury in closing argument “how a matter gets before you in Court,” saying that the agents in charge approach the United States Attorney’s office, and if the assistant United States Attorney and the United States Attorney agree that “in fact a violation has occurred, then they prepare an indictment,” which is presented to a grand jury “composed of people drawn from the same list as yourself,” who will then return an indictment only “if they feel that there has in fact been a crime.” (Id. at pp. 277–278. Italics added.) Nothing like that happened in this case. Although Officer Balady testified – without objection – to the unremarkable proposition that the District Attorney’s office only pursues cases it believes are valid, there was no evidence or argument – let alone argument based on facts outside the record – that a group of people just like the jury had already decided the defendant had committed the charged crimes.
c. Closing and Rebuttal
During closing argument, the prosecutor said: “Police officers testify every day in court all across California. The fact that you know Officer Balady did a good job in this case is that he testified he wrote a report, and then he testified to you all of the details of this case and not once was he impeached by anything from his report. . . . [¶] Do you believe officers make mistakes in their reports? You didn’t here [sic] a single word of Officer Balady making a single mistake or say anything contradictory to anything in his report or any time he may have previously testified in this case in other types of hearings.” (Italics added.)
This was not impermissible vouching. The prosecutor did not interject her personal opinion or suggest she knew something outside the evidence; she merely urged the jury to infer from the evidence that Balady did a good job.
In rebuttal, the prosecutor argued: “So to say it is a conflict that it is possessed both for personal use and for possession of [sic] sales. Actually, what that is is a very honest officer telling you, I am going to give him the benefit of the doubt and say at least some of it is possessed for his own personal use because he has a medical marijuana card and he said he uses. But he also said he sells and all of this stuff is inconsistent with personal use.” (Italics added.)
Again, counsel merely commented on the state of the evidence, inviting the jury to draw a particular inference from the fact that the officer gave Aleqabi the benefit of the doubt that some of the marijuana was possessed for personal use. There is no reasonable likelihood that the jury construed any of the prosecutor’s comments to refer to facts not in evidence or applied those comments in an improper manner.
E. Cumulative Error
Aleqabi contends the cumulative effect of the purported errors warrants reversal of the judgment. Since we find no error, there is no cumulative prejudicial effect.
III. DISPOSITION
The judgment is affirmed.



NEEDHAM, J.



We concur.




SIMONS, ACTING P.J.




BRUINIERS, J.