APPEAL from a judgment of the Superior Court of Kern County. enneth C. Twisselman II, Judge. (Super. Ct. No. BF125801A).
The opinion of the court was delivered by: Hill, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Rejecting a compassionate use defense, a jury convicted defendant Lewis Marcus Dowl of transportation of marijuana (Health & Saf. Code,*fn2 § 11360, subd. (a); count 1) and possession of marijuana for sale (§ 11359; count 2); however, the jury returned not true findings on the associated gang enhancements (Pen. Code, § 186.22, subd. (b)(1)), and found defendant not guilty of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count 3). The trial court sentenced defendant to prison for a total of three years. On appeal, defendant contends: (1) insufficient evidence supports his convictions of transportation of marijuana and possession of marijuana for sale; and (2) the trial court abused its discretion and violated his constitutional rights when it refused to bifurcate trial of the gang allegations. We reject defendant's contentions and affirm the judgment.
We publish the part of the opinion that holds a police officer need not qualify as a medical marijuana expert in order to render an opinion that marijuana being possessed is possessed for sales in cases where the defendant raises an affirmative defense under California's Compassionate Use Act of 1996 (hereafter the Compassionate Use Act). (§ 11362.5.)
On November 29, 2008, two police officers stopped defendant for playing loud music in his car. When Officer Jason Williamson approached defendant's window, defendant gave the officer his driver's license and medical marijuana identification card and told him there was marijuana in the car.
A search of defendant and his car revealed the presence of 66.7 grams (just over two ounces) of marijuana. A single bag, containing 17.2 grams of marijuana, was found in defendant's pocket. Ten individual baggies, each containing 3 grams of marijuana, were found in the driver's door, and three individual baggies, each containing 6.5 grams of marijuana, were found lying on the backseat. A WD-40 can, with a hidden compartment containing marijuana residue, was also found in the car. However, no devices for ingesting marijuana were found in defendant's car.
Officer Williamson testified, in his expert opinion, that the marijuana found in defendant's possession was possessed for purposes of sale. Although the 17.2-gram bag of marijuana found in defendant's pocket "may or may not be for [defendant's] personal use[,]" the location and packaging of the other 13 baggies was consistent with "curb service" sales of illegal drugs. Depending on the quality of the marijuana, the 3-gram baggies found in defendant's car could sell on the street for between $5 and $10 each, and the 6.5-gram baggies, could sell for approximately double that. Officer Williamson's opinion the marijuana was possessed for sale was unaffected by defendant's possession of a medical marijuana identification card "[b]ecause of the totality of the circumstances of what [the officer] saw."
The prosecution also presented the testimony of a gang expert, who opined that defendant was an active member of the Bloods criminal street gang and that the crimes in this case were gang-related. Additional relevant facts are included below in our discussion of the bifurcation issue.
Defendant testified on his own behalf and presented medical records to show he sustained a shoulder injury from a hit-and-run car accident in May 2007. The injury caused him to suffer chronic, throbbing pain. As a result, defendant obtained a medical marijuana identification card from the Bakersfield Health Department in July 2008, after being evaluated by a physician. The identification card was valid at the time of his arrest. Defendant also had a written recommendation from his physician.
Defendant explained that medical marijuana helped to numb the pain caused by his shoulder injury and also helped him with sleep problems he had suffered for a long time. He usually consumed his marijuana by smoking it in cigars. When the police stopped him, he was carrying a "splitter" on his keychain, which is a cylindrical object used to split cigars.
Defendant denied that he was selling marijuana. The marijuana found in his possession was from a medical marijuana dispensary in Los Angeles. Defendant went to Los Angeles because there were no dispensaries in Bakersfield. When he purchased the marijuana from the dispensary, he was required to present his identification card. The marijuana cost him $200, and was packaged in a single bag.
After purchasing the marijuana, defendant divided it into separate baggies. When asked why he did this, defendant explained: "I package them in the dosage that I take on a daily basis and for it to fit in certain areas[,]" including the WD-40 can, which he would use to carry his dosages when we went to work. When asked to explain the presence of multiple baggies of marijuana in the driver's door and the three baggies in the backseat, defendant testified: "I was in a rush, and I just threw them in the car."
I. Sufficiency of the ...