Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. (Super. Ct. No. 08NF3033)
The opinion of the court was delivered by: O'leary, Acting P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sharon Lee Brown appeals from a judgment after a jury convicted her of felony possession for sale of a controlled substance and misdemeanor possession of marijuana. Brown argues the trial court erroneously denied her mistrial motion after the prosecutor failed to disclose discovery. We disagree and affirm the judgment.
One September evening, Officer Christopher Nyhus responded to an apartment in Buena Park to investigate reports of suspicious activity. When Nyhus, Detective Tom Carney, and another officer arrived, they found the front door open and a man, woman, and child in the living room. When Nyhus asked whether anyone else was in the apartment, the man stated his mother was in the bedroom. Nyhus knocked on the bedroom door, and Brown opened the door. Nyhus saw two other females stand up from where they sat on the bed.
Nyhus found two butane lighters and butane cans on the bed. Carney asked Brown whether she had any contraband in her bedroom. Brown responded she had methamphetamine and marijuana, and she led him into the bedroom. As Nyhus and Brown talked, Brown reached under her shirt and took out a glass pipe covered in brown and crystalline residue that Nyhus believed Brown used to smoke methamphetamine. She gave the pipe to Nyhus.
Carney searched the bedroom and found two plastic prescription medicine bottles containing methamphetamine, a green plastic container containing two Ziploc baggies of marijuana, a ceramic jar containing a plastic bag with methamphetamine, six narcotics pipes, $4,000 cash underneath the bed that was later determined to be from her 401K savings account, and a digital scale. Nyhus observed the digital scale was covered in a brown crystalline residue he believed was methamphetamine.
Nyhus interviewed Brown at the police station and she admitted the methamphetamine and marijuana were hers. Brown explained she was a long time methamphetamine user who had not used in at least three months. She repeatedly denied selling methamphetamine. Brown claimed she used the digital scale to weigh beads to make jewelry. She claimed the long clear baggies that were in her briefcase were for packaging beads. Brown said she had lost her job, her employer denied her unemployment, and she was living off her retirement account.*fn1
An information charged Brown with possession for sale of a controlled substance, methamphetamine (Health & Saf. Code, § 11378) (count 1), and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)) (count 2).
At trial, the prosecutor offered Nyhus's testimony. He explained that in the days leading up to the incident, the police received telephone calls and an email stating there were many people going to and leaving the apartment.*fn2 He opined Brown possessed the methamphetamine for sale because of the amount of methamphetamine in relation to how often Brown said she used the drug, the digital scale, and the plastic baggies. Nyhus explained that based on how often Brown said she used methamphetamine, the amount she possessed would last one year.
During cross-examination, defense counsel asked Nyhus whether the residue on the scale had been tested. Nyhus replied it had, and defense counsel asked, "It was tested?" Nyhus responded, "Yes." Defense counsel said, "The residue on the scale?" Nyhus again said, "Yes." Defense counsel asked ...