(Super. Ct. No. CRF092789)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 defendant Tommy Lee Enos Sparhawk of possession and transportation of methamphetamine, possession of marijuana for sale and possession of a narcotics pipe. (Health & Saf. Code, §§ 11359, 11364, 11377, subd. (a), 11379, subd. (a).) The trial court found defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to prison for five years, and defendant timely appealed.
On appeal, defendant contends the trial court improperly excluded the testimony of a defense witness, misinstructed on intent, improperly allowed the jury to consider a prior crime to prove the current charges, misinstructed on unanimity, committed cumulative error and imposed an unauthorized misdemeanor sentence. The Attorney General concedes the latter point. We shall modify the judgment and affirm.
Sutter County Deputy Sheriff Lyle Akin testified that on November 4, 2009, he stopped a pickup truck for speeding. George Lott was the driver, defendant was the front passenger, and Vicky Middleman sat in the rear seat. Defendant had six clear sandwich bags in his pants pocket, of the kind used for packaging narcotics.
Deputy Akin found a gallon-sized Ziploc bag with 106.5 grams of marijuana in the truck bed, on the "driver's side front of the bed[.]" He also found a backpack that defendant claimed.
Defendant's backpack contained three baggies of marijuana weighing 14.35 grams, 4.35 grams, and 3.28 grams, and one of these baggies also had 1.69 grams of concentrated cannabis. Another baggie held 29 clear baggies. The backpack also had a digital scale of the kind used in drug sales, bearing methamphetamine residue. The backpack also had a notepad, with names and dollar amounts consistent with a "pay/owe" sheet used by drug dealers.
The first page of the notebook contains names followed by telephone numbers--"RT," "Rita," "Tammy," "Deb," and "Deb [unintelligible]" -- and two other names, "Dennis PV MO" and "William OXY." The second page describes a Dell computer purchase. The key third page, labeled "gas," has the note "Sunday" on the side, and then reads as follows:
On the floorboards between the front passenger seat and the center console, Deputy Akin found a potato chip bag that contained a pipe used for smoking methamphetamine, which had .24 grams of methamphetamine in the bowl. Behind the driver's seat he found a box which contained defendant's driver's license. Defendant claimed a laptop found on top of that box, and also claimed a laptop found in the truck bed that was in a bag with his birth record and social security card.
Yuba-Sutter Narcotics Enforcement Team ("NET-5") Agent Robert Brokenbrough testified as an expert that a person possessing the items attributed to defendant in the truck would be possessing them for sale. He also testified his opinion would not change if the marijuana in the Ziploc bag were excluded from the hypothetical, because the amount of the remaining marijuana, the scale, packaging and pay/owe sheet showed an intent to sell.
NET-5 Detective Brandon Spear testified that on August 27, 2008, he found defendant in possession of methamphetamine; defendant was arrested and prosecuted. Defendant later stipulated that he was convicted of possession of methamphetamine in that prior incident.
Richard Townsend testified as a defense witness that because of hard financial circumstances, he and defendant loaned each other money for gas as needed, and defendant kept track of these exchanges in his notebook.
However, Townsend also gave damaging testimony on cross-examination. He testified defendant did not use marijuana, but had it in his backpack for five weeks and had planned to give it to a woman he liked. This testimony tended to undermine the defense of possession for personal use. Townsend also conceded he had told an investigator defendant had the scales in order to sell methamphetamine.
The driver, George Lott, refused to testify, citing his Fifth Amendment privilege.
Vicky Middleman testified she was in the backseat, but was not eating potato chips that day and she did not tell anybody that the pipe inside the potato chip bag was hers.
Tammy Reusser testified she often gave defendant rides and he would pay gas money, and she also loaned him money and borrowed money from him, and her name and telephone number were in defendant's notebook. Rita Elsalaymeh also testified she gave defendant rides ...