IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD JAMES MATHIS ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. 08F09657)
The opinion of the court was delivered by: Robie, J.
P. v. Mathis
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendants Richard James Mathis and Denny Craig Akers of possessing marijuana for sale, and unlawfully transporting marijuana. Akers was also convicted of possession of a device for smoking a controlled substance (a misdemeanor). The court suspended imposition of sentence for both defendants and placed them on five years' probation.
Defendants both argue on appeal that insufficient evidence supports their convictions of possessing marijuana for sale. Akers also contends the trial court erred in permitting only a portion of the statement he made to the arresting officers to be introduced into evidence and Mathis contends he is entitled to additional custody credits. Only the last contention has merit.
While on early evening patrol inside a trailer park on Auburn Boulevard in Sacramento, Deputy Sheriffs Jack Noble and Jose Lemus stopped to question defendants, who were sitting inside a parked car. Neither defendant lived in the trailer park where drug sales were known to occur; Mathis lived down the street.
When Deputy Noble spoke to Mathis, he noticed the smell of fresh marijuana and found a Ziplock baggie containing nearly an ounce of marijuana in Mathis's jacket. He found no evidence of marijuana use on Mathis, however; Mathis did not look or smell as though he had been smoking marijuana, and he had no pipe, rolling papers, marijuana cigarettes, lighter nor roach clip.
Deputy Lemus searched Akers and recovered a pipe for smoking methamphetamine and over $500 in cash. Akers did not look or smell as though he had been smoking marijuana, and Lemus found no marijuana cigarettes, lighter, rolling papers, pipes nor other smoking devices in the car or in Akers's possession. Neither defendant had a medical marijuana recommendation.
The car was searched after defendants were detained. Inside the trunk of the car, the officers found three more Ziplock baggies inside a paper bag: all three baggies contained roughly an ounce of marijuana. Besides the $500 in cash, nowhere in the car or on Akers did officers find any other indicia of drug sales, such as scales, pay/owe sheets, or additional packing material.
Deputy Noble later testified that Akers gave a statement to officers at the scene and told them that "all the marijuana belonged to him."
Defendants were both charged with possessing marijuana for sale and transportation of marijuana; Akers was also charged with possessing a methamphetamine pipe.
The chief issue at trial, as here, is whether the marijuana recovered at the scene had been possessed for sale, rather than for personal use.
Deputy Noble testified that, in his opinion, the amount of marijuana recovered that night is not consistent with personal use. He also testified he found nothing in the car to indicate "that the marijuana found in the car as well as on [defendant] Mathis was consistent with personal use[.]"
Detective Maher, a narcotics expert with the sheriff's department, testified that "indicia" of marijuana sales (such as packaging, scales, grinders, pay/owe sheets, guns, and money) are not always present when marijuana is possessed for sale. The prosecutor presented Maher with a hypothetical based on facts identical to those in this case -- the amount of marijuana found, and the lack of indicia of either sales or personal use or medical marijuana cards -- and Maher was of the opinion that the marijuana was possessed for sale based chiefly on "the sheer amount," i.e., just over four ounces, which is "way too much marijuana for personal use. That's about an eight month supply." Possession of an ounce by a user is "not very common" because "[i]t takes very little to get your [sic] high . . . . You don't need that whole ounce." In Maher's opinion, if someone possesses an eighth of an ounce, it might be for personal use, but possession of more than half an ounce is likely for sale.
Detective Maher testified his opinion was also based in part on the fact that the marijuana in defendants' possession was packaged in ounce-sized quantities; it was not packaged for preservation; they had cash; and the fact that neither was under the influence. That both defendants lacked a medical marijuana recommendation further supported his opinion that the marijuana was possessed for sale, Maher testified. Maher's opinion was not affected by the fact that one defendant held an ounce of marijuana, while the other held the money, because people working together will try to avoid a possession for sales charge by splitting up the drugs and the cash.
The defense theory was that defendants were not selling marijuana; Akers had instead just bought marijuana in the trailer park for his own personal use. On cross-examination, Detective Maher agreed that a marijuana user buying in bulk would both get a price break and be less exposed to apprehension and it could "make sense" that someone found in possession of a pound of marijuana not packaged for preservation "just purchased" it, and "had not [yet] had the opportunity to get it home and vacuum sealed."
The jury rejected this theory and found both defendants guilty as charged.
Exclusion Of Portions Of Akers's Statements To Officers
Before trial, the People moved in limine to admit only inculpatory statements by defendants to others because "[Evidence Code] Section 1220 only allows for Defendant statements to be offered AGAINST him, not on his behalf." At the pretrial hearing on various evidentiary matters, the parties discussed the admissibility of Mathis's statement to officers that the marijuana in his jacket belonged to Akers, as well as Akers's admission to officers that all the marijuana belonged to him (Akers), which Mathis sought to have admitted. The court granted the People's motion and indicated a willingness to consider possible cross-admissibility issues later.
After the jury was empaneled, the parties considered whether Akers's admission created an Aranda/Bruton problem. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.) Akers's counsel did not speak during the discussion of his client's statement. The prosecution asserted that Akers's statement admitting ownership of the marijuana, which "placed in context, the full statement reflects that Akers stated he uses the marijuana for his carpel tunnel. He stated that he's in the process of getting a medical marijuana card. Akers states he buys large amounts of marijuana and keeps it for personal use. [¶] . . . [¶] So if the Court is inclined to include the statement, I would limit it to -- the only part of it would be Akers stated that all the marijuana belonged to him as being the statement against penal interest." The court agreed that only the inculpatory portion of Akers's statement would be admitted (as a statement made against penal interest), and directed the People to so instruct the deputy before he testified.
During trial, after Detective Maher testified, the court stated it wished to place on the record a sidebar conference which had occurred following Deputy Lemus's direct testimony regarding Akers's lack of a medical marijuana card. Akers had sought to cross-examine Deputy Lemus about Akers's statement that he had previously held medical marijuana cards and that he was in the process of getting a new one.*fn1 The court agreed that the absence of a medical marijuana card tended to negate the theory that Akers possessed the marijuana for personal use, and therefore to support the prosecution's theory that it was for sale. But it declined to allow Akers's attorney to introduce any other portions of his statement to officers through Deputy Lemus, because it would be inadmissible hearsay; rather, the court ruled, Akers could himself testify that "he had a medical marijuana card, if he did, or was in the process of buying one, if he did. Just put him on the stand and ask him."
Akers contends on appeal that he should have been allowed under the rule of completeness (Evid. Code, § 356) to elicit from Deputy Lemus the entirety of his explanation for possessing the marijuana -- i.e., that he "buys the marijuana in the quantities involved for personal use to help him with his carpal tunnel syndrome and that he had medical marijuana cards in the past and he was in the process of getting a new card." Moreover, he argues, the exclusion of these statements violated his constitutional right to present a defense by preventing the jury from hearing his explanation for his admitted ownership of the marijuana, and the errors were prejudicial.
Evidence Code section 356 states that "[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party." "The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 156; see People v. Johnson (2010) 183 Cal.App.4th 253, 287.) We review claims of error under section 356 under an abuse of discretion standard. (People v. Johnson, supra, at p. 287.)
The People assert, and we agree, that Akers failed to preserve the issue for review by failing to object on these specific grounds at trial. (See People v. Harrison (2005) 35 Cal.4th 208, 239; People v. Hines (1997) 15 Cal.4th 997, 1003.)
Akers responds that the People's "written pre-trial motion in limine seeking to restrict use of [his] whole statement to police by limiting it to only the inculpatory portion" was "fully litigated both prior to trial in chambers . . . and again during cross-examination when [his] counsel expressly brought the issue to the court's attention arguing that the rest of the statement should also be admitted." We disagree. Our review of the record shows Akers's counsel never asserted that his "whole statement to police" should be admitted, only his statements that he (1) previously held a medical marijuana card, and (2) was "in the process" of getting a new one. Nor did he ever argue that the failure to allow these statements, or any statements, violated the rule of completeness articulated in Evidence Code section 356. Having failed to preserve the issue for appeal, Akers cannot raise it now.
Sufficiency Of The Evidence For Possession For Sale
Both defendants contend the evidence adduced at trial was insufficient to prove that they possessed the marijuana with the intent to sell it. We disagree.
Under a sufficiency of the evidence standard of review, we review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)
Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal is not warranted unless it appears that there is no hypothesis on which there is sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A conviction for possession of marijuana for sale may be upheld based on opinion testimony by an experienced officer that a defendant possessed the marijuana for sale rather than for personal use. (People v. Harris (2000) 83 Cal.App.4th 371, 374-375; see People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862.) In rendering such an opinion, an officer may rely on facts such as the quantity of marijuana seized, the packaging of the drug, the normal use of an individual, and the lack of drug paraphernalia found. (People v. Parra (1999) 70 Cal.App.4th 222, 227.)
In the instant case, it was Detective Maher's opinion that defendants possessed the marijuana found in the car and in Mathis's pocket with the intent of selling it, based on the "sheer amount" of the drug; the fact that the amount possessed vastly exceeded what a marijuana user could consume in eight months; its packaging in Ziplock bags, rather than for long-term preservation; and the fact that it was packaged in roughly equal one-ounce "denominations." These are among the factors properly relied upon by an experienced officer in forming his opinion that the marijuana was possessed for sale. (People v. Parra, supra, 70 Cal.App.4th at p. 227.) Thereafter, it was for the jury to credit the opinion or reject it. (People v. Harris, supra, 83 Cal.App.4th at p. 375.)
Defendants have presented no justification for this court to upset the jury's finding the marijuana was possessed for sale.
Entitlement To Additional Custody Credits
Mathis was awarded 15 days of credit, consisting of 11 days custody credit, plus four days of conduct credit. Because he was sentenced on February 26, 2010, after the effective date of the October 2009 amendments to Penal Code section 4019, Mathis claims he was entitled to the benefit of those amendments. The People agree.
We also note that, on September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (see Stats. 2010, ch. 426 (Sen. Bill No. 76)), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (Sen. Bill No. 76, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3).) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (see Stats. 2009, ch. 28, § 50 (Sen. Bill No. 3X 18)) when the person served an odd number of days in presentence custody, and it eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals -- including Mathis's -- pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)
Mathis is not among the prisoners excepted from additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
Mathis was in custody for 11 days prior to sentencing. Therefore, pursuant to the amendments to Penal Code sections 4019 and 2933, he is entitled to 11 days' credit.
The matter is remanded to the trial court to award Mathis the additional presentence credits to which he is entitled under amendments to Penal Code sections 4019 and 2933, and to modify the sentencing records accordingly. The judgment is affirmed in all other respects.
We concur: RAYE, P. J. MAURO , J.