P. v. Duby
Filed 2/6/13 P. v. Duby CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS DUBY,
Defendant and Appellant.
B236676
(Los Angeles
County
Super. Ct.
No. NA087449)
APPEAL from
a judgment of the Superior Court
of
County.
Charles D. Sheldon, Judge.
Affirmed.
Gloria C.
Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Michael R. Johnsen and Daniel C. Chang, Deputy Attorneys General, for Plaintiff
and Respondent.
_______________
Appellant
Thomas Duby was convicted, following a jury trial, of one count of
violation of Health and Safety Code section 11359 and one count of
transportation of marijuana in violation of Health and Safety Code section
11360, subdivision (a). The jury found
true the allegation that appellant had served a prior prison term within the
meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced appellant to the
low term of two years for the possession for sale conviction, stayed sentence
on the transportation conviction pursuant to Penal Code section 654 and struck
the section 667.5 enhancement.
Appellant
appeals from the judgment of conviction, contending that the trial court abused
its discretion in admitting evidence of his prior uncharged conduct and text
messages on his cell phone, and erred in failing to instruct the jury on his
burden of proof under the Compassionate Use Act ("CUA") and failing
to modify CALJIC No. 12.21 and CALCRIM No. 2361. Appellant further contends that the
prosecutor committed misconduct in closing argument. We affirm the judgment of conviction.
Facts
On November
29, 2010, about 7:30 p.m., Long Beach Police Department Officer Robert Owens
and Detective Tim Olson conducted a traffic stop of a car driven by
appellant. Anthony Rodriguez was in the
front passenger seat of the car and appellant's wife, Guadalupe Duby
("Guadalupe"), was in the back seat.
Officer Owens saw open bottles of beer on the car console.
Detective
Olson asked appellant if he had any weapons inside the car, and appellant
replied that there was a knife under the middle console. The officers then asked appellant to step
outside of the car for a patdown search.
Appellant said that he was a medical marijuana user and had a pound of
marijuana in the trunk of the car.
Appellant and Rodriguez gave the officers Medical Advisory Center cards
("MAC cards").
Rodriguez
told the officers that he, appellant and Guadalupe had pooled their money to
buy the marijuana. He said that he had
made the purchase at a marijuana dispensary located "right around the
corner" from where the car was stopped.
Detective
Olson went around the corner, saw a dispensary and then returned to appellant
to confirm that it was the correct dispensary.
Appellant agreed that it was.
Detective Olson went inside the dispensary, which was called the High
Quiggle Healing Center ("the Center"). He spoke with Kim and Edward Quiggle, who
worked there. Detective Olson determined
that appellant, Rodriguez and Guadalupe had not purchased marijuana from the
Center.
The
officers then searched the trunk of appellant's car. They found a metal lockbox which contained a
functioning scale with marijuana residue on top, a magnifying glass, a
marijuana grinder and a plastic bag holding 19.56 grams of marijuana. The officers also found two more plastic
bags, one containing 225.32 grams of marijuana and the other 190.15 grams. In addition, the officers found a plastic
prescription vial, Swisher Sweet cigarettes, a box of 65 plastic sandwich bags
and an opened box containing 12 pairs of latex gloves.
The
officers seized a cell phone and $265 from appellant, and a cell phone, $440
and a marijuana pipe from Rodriguez.
They also seized a cell phone from Guadalupe. Officer Owens checked the "recently
received" messages on Rodriguez's cell phone and discovered a message
which read: "How much for a quarter
ounce?" Officer Owens scrolled down
and saw a reply that read: "For you
90."
At trial,
the Quiggles testified for the prosecution.
Both testified that Rodriguez and appellant had not come into the Center
on the day in question. Kim Quiggle
testified that the Center only dispensed one or two ounces at a time to its
patients, packaged in bottles with warning labels similar to the ones used by
drugstores. The Center's name was on the
label. She did not allow a person to
come into the store with paperwork for two or three other people and obtain
marijuana on behalf of those persons.
She did not accept MAC cards, or any other cards, believing that they
meant nothing. She noted that such cards
could be easily faked, and that she saw many fake cards. Ms. Quiggle only relied on a doctor's recommendation
sheet with a stamp, and she called to verify the recommendation.
Long Beach Police Officer James
Richardson testified about an uncharged incident in 2007 in which appellant had
possessed methamphetamine for sale. The
methamphetamine was discovered during a traffic stop of a truck appellant was
driving. There was a passenger in the
truck. Long Beach Police Officer James
Richardson searched the truck and found a bag containing baggies of
methamphetamine, and a functioning scale.
He found a second scale inside a toolbox. Appellant had $1,538 in his pants
pocket. Officer Richardson reviewed the
text messages on appellant's cell phone.
He described them as follows:
"If you need money, it used dollar, dime or money. You got an 'O' . . . for 750 and 'eight
ball.' It said, 'I will take it.' And it said, "You don't have to contact
me. You can send it with a
runner.'" According to the officer,
"O" refers to an ounce and "eight ball" refers to an eighth
of an ounce. Based on all these
circumstances, Officer Richardson opined that appellant possessed the
methamphetamine for sale.
Long Beach
Police Detective Gregory Roberts testified as the prosecution's drug
expert. He explained that sandwich
baggies are often used to package controlled substances. Small digital scales are used to weigh
controlled substances. Gloves are used
to handle marijuana to avoid sticky residue from the flowering portion of the
plant. Users, however do not care about
getting residue on their hands. Most
users do not use scales, but simply estimate the amount of marijuana. A magnifying glass may be used by marijuana
sellers to inspect the quality of the marijuana to determine its value. A grinder turns marijuana into powder so that
it can be more easily placed into cigarettes for smoking. The storage container found in appellant's
car had a pressure valve and would be used to keep marijuana fresh for long
periods of time.
Detective
Roberts testified that most users smoke about one-third or one-half of a gram
of marijuana at a time, with a total of about one gram per day. One pound of marijuana would be about 800 to
1,200 doses and would be worth about $3,000 to $4,000. He had never encountered anyone buying a
pound of marijuana for personal use.
Detective
Roberts explained that there are state-issued cards for medical marijuana
users. The ones in this case were not
state-issued. They were issued by a
dispensary or private commercial entity.
Detective Roberts had seen "some" fake cards that were issued
by private entities. In the detective's
experience, almost everyone who sells marijuana also uses it. Sellers may use medical marijuana as a cover
for their sales. Medical marijuana sold
by dispensaries is generally packaged in small pill bottles.
Presented
with a hypothetical matching the facts of this case, Detective Roberts opined that
the marijuana was possessed for sale. He
based his opinion on the amount of marijuana, the scale, the plastic baggies
and the magnifying glass.
Appellant
testified in his own behalf at trial. In
April 2010, he went to the Medical Advisory Center ("MAC") in
Westwood, where he had a physical and received a recommendation for the use of
medical marijuana. He also received a
card to carry to show that he was a medical marijuana patient. The back of the card stated that he was
allowed to carry eight ounces of marijuana.
Appellant
used the medical marijuana for headaches.
In his experience, one gram of marijuana makes two cigarettes. He smoked two to four times a day, depending
on the severity of the headache.
On November 29, 2010, he, his wife,
and Rodriguez pooled their money to buy medical marijuana. Appellant gave Rodriguez $800 and expected to
receive four ounces. He expected that
his wife would also receive four ounces.
The remaining eight ounces would go to Rodriguez. Appellant drove to East Broadway in Long
Beach so that Rodriguez could buy the marijuana. Appellant lived in Bellflower. It was Rodriguez's idea to go to Long Beach
to buy the marijuana. He said that a
dispensary there was giving good deals because it was harvest time. Appellant had previously gone to dispensaries
in Artesia and Paramount, which were closer to his home.
Appellant parked the car, and
Rodriguez got out and walked away.
Appellant did not see exactly where he went. Rodriguez returned with a bag in his hand and
asked appellant to open the trunk.
Appellant opened the trunk, and Rodriguez put that bag into the trunk,
then got into the car. Appellant was
just starting to drive away when he was stopped by the police.
Appellant told the officers that he
was a medical marijuana user and that there was medical marijuana in the
trunk. Appellant was not aware that the
metal box was in the trunk, or the gloves.
He believed that those items belonged to Rodriguez.
Appellant
also presented the testimony of John Jenks as a drug expert. In Jenks's opinion, appellant possessed the
marijuana for personal use, not for sale.
Discussion
1. Prior conduct
Appellant
contends that the trial court abused its discretion in admitting evidence of a
prior incident in which appellant was found in possession of methamphetamine, a
scale and some baggies.
name="_ftnref1" title="">[1] We see no abuse of discretion.
"The rules governing the
admissibility of evidence of other crimes are well settled. '"Evidence of the defendant's commission
of a crime other than one for which the defendant is then being tried is not
admissible to show bad character or predisposition to criminality but it may be
admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be
highly inflammatory, its admissibility should be scrutinized with great
care. [Citation.]'" [Citation.]" (People
v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on other grounds by
Cal.4th 390.)
"The least degree of
similarity (between the uncharged act and the charged offense) is required in
order to prove intent.
[Citation.]" (
Cal.4th 380, 402.) "In order to be
admissible to prove intent, the uncharged misconduct must be sufficiently
similar to support the inference that the defendant '"probably harbor[ed]
the same intent in each instance."
[Citations.]'" (
More similarity is required in
order to prove the existence of a common design or plan. "[E]vidence of uncharged misconduct must
demonstrate 'not merely a similarity in the results, but such a concurrence of
common features that the various acts are naturally to be explained as caused
by a general plan of which they are the individual manifestations.' (2 Wigmore [Evidence] (Chadbourn rev. ed.
1979) § 304, p. 249, italics omitted.)
'[T]he difference between requiring similarity, for acts negativing
innocent intent, and requiring common features indicating common design, for acts
showing design, is a difference of degree rather than of kind; for to be
similar involves having common features, and to have common features is merely
to have a high degree of similarity.' (
also 1 McCormick [on Evidence (4th ed. 1992)] § 190, p. 805.)" (People
v. Ewoldt, supra, 7 Cal.4th
at pp. 402-403.) "[T]he plan need
not be unusual or distinctive." (
It is well
established that a prior incident of possession or sale of the same controlled
substance as the one in the charged offense is admissible to show intent and
knowledge. (People v.
Cal.App.3d 306, 319-320.) Appellant
contends that this rule does not apply where, as here, the prior incident
involves a different controlled substance than the charged offense.
The
admissibility of a prior incident involving a different controlled substance
will depend on the circumstances of the prior and current cases, and the use
for which it is offered. Here,
appellant's prior sale of methamphetamine was relevant to show intent to
sell. In that instance, he and another
person were transporting a large quantity of methamphetamine in a vehicle,
along with scales and a large amount of cash.
He communicated with potential buyers via text messages on a cell
phone. In the present case, appellant
and two other people were transporting a large quantity of marijuana in a
vehicle, along with a scale and cash.
There were two text messages on a cell phone in the vehicle which could
reasonably be understood as involving an offer to sell the marijuana. These are sufficient similarities to support
an inference that appellant had the intent to sell the marijuana, and the
knowledge of how to sell a controlled substance.
Appellant
is correct that marijuana may be legally possessed in cases of medical need
while methamphetamine can never be legally possessed. Appellant overlooks the fact that he was
charged with selling marijuana, and
he never contended that he was authorized to make such sales. Thus, the prior incident was sufficiently
similar to be relevant to his intent.
Appellant
also contends that even if the prior incident was admissible under Evidence
Code section 1101, it should have been excluded under Evidence Code section 352
because its prejudicial potential outweighed its probative value. We do not agree.
Evidence
Code section 352 provides: "The
court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury."
A trial
court has broad discretion to weigh the probative value of evidence against its
potential prejudicial impact. A court's
decision that the probative value of the evidence outweighs its prejudicial
impact will not be disturbed on appeal unless the court exercised its
discretion in "'an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of
justice. [Citations.]'" (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
A trial
court "need not expressly weigh prejudice against probative value or even
expressly state that it has done so, if the record as a whole shows the court
was aware of and performed its balancing functions under Evidence Code section
352." (People v.
The "prejudice" referred
to in Evidence Code section 352 applies to evidence that uniquely tends to
evoke an emotional bias against one side, with very little effect on the
issues. (People v.
134.) It is "not the prejudice or
damage to a defense that naturally flows from relevant, highly probative
evidence." (People v.
658.)
Here, the prior incident was
relevant to appellant's intent to sell the marijuana in this case. The prior incident did not involve violence,
weapons, the threat of force or any other extraneous unpleasant conduct. It was not inflammatory in any way. Thus the trial court did not abuse its
discretion in admitting the evidence.
2.
Prosecutorial misconduct
Appellant contends that the
prosecutor committed misconduct in his closing argument by telling the jury
that appellant had the burden of proving a CUA defense. He also contends that the prosecutor
committed misconduct by arguing that the MAC cards were not valid without
having any evidence to support that argument.
Respondent contends that appellant has forfeited these claims by failing
to object in the trial court. Appellant
contends that if his claims are forfeited, he received ineffective assistance
of counsel.
In order to preserve a claim of
prosecutorial misconduct, a defendant is required to object to prosecutorial
misconduct in a timely fashion, and to request a curative admonition. (People
v. Hill (1998) 17 Cal.4th 800, 820; People v.
1000-1001.) Appellant did neither, and
so his claim is forfeited.
Appellant
has the burden of proving ineffective assistance of counsel. (People
v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant
must show that his counsel's performance fell below an objective standard of
reasonableness, and that, but for counsel's error, a different result would
have been reasonably probable. (
U.S. 668, 687-688, 694; People
(1987) 43 Cal.3d 171, 216-218.) "A
reasonable probability is a probability sufficient to undermine confidence in
the outcome." (Strickland v.
In evaluating a claim of
ineffective assistance of counsel, "a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound
trial strategy.'" (
Cal.4th 489, 530-531.) Courts
should "accord great deference to counsel's tactical decisions" and
"'should not second-guess reasonable, if difficult, tactical decisions in
the harsh light of hindsight' [citation].
'Tactical errors are generally not deemed reversible, and counsel's
decisionmaking must be evaluated in the context of the available facts.' [Citation.]" (People
v. Weaver (2001) 26 Cal.4th 876, 925–926.)
a.
Burden of proof
We will assume for the sake of
argument that the prosecutor misstated or overstated appellant's burden of
proof. Our Supreme Court has repeatedly pointed out that
"'[a]n attorney may choose not to object for many reasons, and the failure
to object rarely establishes ineffectiveness of counsel.' [Citation.]" (People
v. Avena (1996) 13 Cal.4th 394, 443.)
Here, it might have been sound
strategy for appellant's trial counsel to object to that portion of the
prosecutor's argument concerning the burden of proof, but that was not the only
strategy available to him. Counsel was
aware that the court's instruction on this point would support his argument
about the burden of proof. Counsel chose
to directly respond to the prosecutor's remarks about the burden of proof,
telling the jury that the prosecutor's argument on burden of proof was
incorrect. He explained that the
prosecutor had the burden of proving that appellant's possession was illegal,
including proving that appellant's documents authorizing medical use of
marijuana were false. He also reminded
the jury to look to the court's instructions for the correct law. A point emphasized in closing argument may be
more persuasive in a particular case than an objection and admonishment. The choice between such sound strategies is
particularly in the province of trial counsel and not this court.
Further,
even assuming for the sake of argument that appellant's trial counsel should
have objected, we see no reasonable probability that appellant would have
received a more favorable outcome in the absence of counsel's error.
The trial court's instruction on
the CUA clearly and unequivocally told the jury: "The People have the burden of proving
beyond a reasonable doubt that the defendant was not authorized to possess or
transport marijuana for medical purposes.
If the People have not met this burden, you must find the defendant not
guilty of this crime."
Jurors are presumed to understand
and follow the court's instructions. (
619, 662; see also Tennessee
(1985) 471 U.S. 409, 415, fn. 6 ["The assumption that jurors are able to
follow the court's instructions fully applies when rights guaranteed by the
Confrontation Clause are at issue."].)
That presumption is particularly strong here, where the parties
themselves acknowledged that they were arguing different versions of the law
and directed the jury to the court's instructions as the final word on the
subject.
In addition, at the conclusion of
closing arguments, the trial court told the jury: "If anything is said . . . about the
law, by either attorney in their arguments, you follow what I tell you. Not what they tell you if there is any
difference." The court also
provided the jury with a written instruction which stated: "If anything concerning the law said by
the attorneys in their arguments or at any other time during the trial
conflicts with my instructions on the law, you must follow my
instructions." Accordingly, we see
no reasonable probability (or possibility) that the prosecutor's argument
caused the jury to misapply the law concerning the burden of proof under the
CUA.
b.
Medical cards
Appellant identifies several
portions of the prosecutor's closing argument in which he referred to the MAC
cards as being not valid or not real. In
most of these instances, the prosecutor was referring to the cards belonging to
appellant's wife and Rodriguez. The
cards were not issued by a governmental agency.
Without foundational testimony, the cards were simply pieces of paper. Appellant's wife and Rodriguez did not
testify, and so there was no evidence to support or explain the cards, and no
evidence that either person was medically authorized to use marijuana. Thus, the prosecutor's argument that there
was no evidence the cards were "valid" or "real" was
perfectly proper as to appellant's wife's and Rodriguez's cards.
As for appellant's card, there is
some evidence that the card was not "valid" in the sense that it was
not an authorization to use or possess medical marijuana. Appellant himself acknowledged that the card
was "not good to get into the clinic.
To get into the clinic you have to have the paper, original." Quiggle testified that all privately issued
cards were "not legit," they "meant nothing" and were
"not considered legal."
name="_ftnref2" title="">[2] Her testimony could reasonably be understood
as claiming that these cards do not constitute a legally valid medical
recommendation for marijuana use. Thus,
there was some evidence to support the prosecutor's argument that the card
itself was not a valid recommendation for the medical use of marijuana.
There is no evidence to support the
prosecutor's argument that appellant's card was not "real,"
however. Appellant expressly testified
that his card was one that he received as a result of a physical from the
doctor at MAC. This is evidence that the
card was "real." There was no
contrary evidence that the card was not "real," that is not a card
issued by MAC. Thus, the prosecutor's
argument that appellant's card was not real was not supported by any evidence,
directly or circumstantially.
It might have been sound strategy
for trial counsel to object to that portion of the prosecutor's argument which
referred to his card as not "real," but that was not the only
strategy available to him. Counsel chose
to address the prosecutor's arguments in his own argument, pointing out although
there was testimony that some privately issued cards are fraudulent, no one,
including the police officers involved in the case, testified that appellant's
card was fraudulent. Counsel also
pointed out that in addition to his card, appellant had a recommendation sheet
from a doctor, which is what Quiggle looked for. Counsel's decision to not object but to wait
to address the prosecutor's arguments during his own argument was equally
sound. A point emphasized in closing
argument may be more persuasive in a particular case than an objection and
admonishment. The choice between such
sound strategies is particularly in the province of trial counsel and not this
court. Accordingly, appellant's claim of
ineffective assistance of counsel fails.
3.
Sua sponte duty – correction
Appellant contends that the trial
court had a sua sponte duty to correct the prosecutor's misstatement of the law
concerning the burden of proof under the medical marijuana laws and that the
court's failure to do so conveyed to the jury that the prosecutor's statements
about the appellant's burden of proof were legally sound and that the jury
could rely on those statements. We do
not agree.
Appellant's characterization of the
court as "silent" is inaccurate.
At the conclusion of closing arguments, the trial court told the
jury: "If anything is said . . .
about the law, by either attorney in their arguments, you follow what I tell
you. Not what they tell you if there is
any difference." The court also
provided the jury with a written instruction which stated: "If anything concerning the law said by
the attorneys in their arguments or at any other time during the trial
conflicts with my instructions on the law, you must follow my instructions." Further, the parties themselves acknowledged
during argument that they did not agree on the burden of proof law, and that
the jury should look to the court's instructions. Appellant offers no reason the jury would
ignore the court's instructions on conflicts and the party's agreement with
that instruction and instead decide that the court's failure to specifically
mention the area of conflict was a directive to ignore the instructions and
rely on the prosecutor's argument. We
see none.
4.
Sua sponte duty - modification
The law
permits possession of a reasonable amount of marijuana for medical use. Appellant testified that only 4 ounces of the
16 ounces of marijuana found in his car was his. The court instructed the jury on the concepts
of sole and joint possession. Appellant
contends that the trial court had a sua sponte duty to also instruct the jury
on the concept of possessing something "severally" which he describes
as separately or distinctly possessing part of the whole.
We will
assume for the sake of argument that the trial court had such a sua sponte
duty. There is no reasonable probability
or possibility that the court's failure to define "several"
possession contributed to the verdict.
The law
permits possession of a reasonable amount of marijuana for medical use. Appellant testified, and his counsel argued,
that only a portion of the whole was his, and that this was a medically
reasonable amount. The prosecutor never
argued that it was legally impossible for appellant to possess only part of the
marijuana. The prosecutor argued only
that the facts showed that the three people in the car jointly possessed the
marijuana, intending to act together to sell it. At one point in his closing argument, the
prosecutor argued that appellant could not legally transport his wife's or
Rodriguez's marijuana, thus implicitly acknowledging that it was possible that
only a portion of the marijuana was appellant's. Accordingly, we see no reasonable probability
of a more favorable outcome if the court had instructed the jury on
"several" possession.
5. Text messages
Appellant
contends that the text messages to and from Rodriguez's cell phone were hearsay
and the trial court erred prejudicially in admitting them.
Hearsay
evidence is "evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the
matter stated." (Evid. Code, §
1200, subd. (a).) Except as provided by
law, hearsay is inadmissible. (Evid.
Code, § 1200, subd. (b).)
The text
message sent to Rodriguez was a request to buy drugs. Requests are generally not considered
hearsay. (People v.
[request "does not assert the truth of any fact [and so] it cannot be
offered to prove the truth of the matter stated."].) A number of courts have specifically held
that evidence of a request to buy drugs is not made inadmissible by the hearsay
rule. (People v.
Cal.App.4th 1515, 1519; People
(1991) 228 Cal.App.3d 447, 450-451.) The
requests are either viewed as nonassertive conduct which does not amount to
hearsay or circumstantial evidence
that the (intended) recipient is selling or intends to sell drugs. (People
v. Morgan, supra, 125
Cal.App.4th at pp. 940-941; People
supra, 228 Cal.App.3d at pp.
450-451.)
Appellant
contends the message in this case was not sent to appellant but to Rodriguez
and so was not relevant to show appellant's intent to sell, except under an
improper guilt by association theory. We
do not agree. There is more evidence of
appellant's guilt than his mere association with Rodriguez. Appellant drove Rodriguez to the Long Beach
area to buy the marijuana, and contributed money to Rodriguez to buy the
marijuana. Rodriguez then did the actual
purchasing. Appellant then began to
drive Rodriguez away from that location when stopped by police. A scale, a box of small baggies and a box of
gloves were found in the trunk of appellant's car, all consistent with drug
sales. This is more than sufficient
evidence to show that appellant and Rodriguez were working together to sell the
marijuana. Under these circumstances,
the text to Rodriguez was relevant and admissible to show all three people
possessed the marijuana with the intent to sell.
Rodriguez's
reply text is a different matter, however.
In Morgan,
officer, who answered a suspect's phone.
There was no issue of a reply to the request. Respondent contends that this text is
admissible under Evidence Code section 1230 as an admission against penal
interest. That section requires a
showing that the declarant is unavailable as a witness, and no such showing was
made here.
We will assume for the sake of
argument that the reply text was not admissible. We see no reasonable probability that
appellant would have achieved a more favorable result if the reply text had not
been admitted. (People v.
Cal.4th 603, 619 [standard applicable to state law error in admitting hearsay
is Watson].) The evidence that appellant intended to sell
the marijuana was very strong. Appellant
drove from his home in Bellflower to Long Beach to buy the marijuana, passing
at least two closer dispensaries along the way.
He and his companions purchased a large quantity of marijuana which was
not labeled as medical marijuana. Detective Olson testified that when the High
Quiggle Healing Center was pointed out to appellant, he agreed that the
marijuana was purchased from that Center, but testimony from the Quiggles
contradicted that claim. When stopped by
police, appellant and Rodriguez had a fairly large quantity of cash on their
persons. There was a scale, box of
gloves, box of baggies and magnifying glass in appellant's trunk, which were
consistent with sales and inconsistent with personal use. Thus, any error was harmless.
Disposition
The judgment is affirmed.
ARMSTRONG,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
claim by failing to object on Evidence Code section 1101 grounds in the trial
court. We do not agree. Appellant did in fact object. The issue came before the court on a motion
by the prosecutor to admit the evidence pursuant to section 1101. When the court asked appellant's trial
counsel if he had anything to say about the motion, counsel replied: "Defense would object to the
motion." Counsel then argued
briefly that the two incidents were not similar and that the evidence was more
prejudicial than probative and should be barred under Evidence Code section 352. This is more than sufficient to preserve the
section 1101 argument.
respondent contends that Officer Roberts testified that cards were not real or
valid, respondent is mistaken. Officer
Roberts testified only that appellant's card was "typical of what's going
to be issued by dispensary or clinics or some private commercial
consumer." He stated that he did
not have any way of telling whether such cards were real or fake.
