(Super. Ct. No. 10F00012)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Jose Manuel Gonzales guilty of violating Health and Safety Code section 11360, subdivision (a),*fn1 its verdict including the special findings that he furnished (or offered to furnish) marijuana, but did not transport more than 28.5 grams.*fn2 It was unable to reach a verdict on a charge of possessing marijuana for sale, and the trial court dismissed that count on the motion of the prosecution. The court granted probation conditioned (inter alia) on a one-year jail term, which it stayed pending appeal. It also granted defendant's request to remain on bail pending appeal.
On appeal, defendant asks us to review the trial court's in camera determination that certain police personnel files did not contain any discoverable materials. He also argues that the trial court erred in giving the prosecution leave to amend the information to charge a felony violation of section 11360, in failing to instruct the jury sua sponte on a "joint purchaser" defense, and in allowing the form of verdict used in this case. Finally, he claims we must reduce his conviction to a misdemeanor because of the finding that he did not transport more than one ounce of marijuana.
The trial court's in camera review of defendant's discovery request was impermissibly perfunctory. After a review of his remaining arguments, we do not find any other error. We thus shall conditionally reverse the judgment for the purpose of the trial court's conducting a new discovery hearing in camera.
We omit a separate statement of the procedural background and the facts in evidence at trial. We will incorporate the pertinent details in the Discussion where relevant.
I. Amendment of the Information at Trial
The complaint charged only a single count of possession of marijuana for sale. At the preliminary hearing, the parties stipulated "for the purposes of [the] preliminary hearing only" that the marijuana recovered from defendant was less than one ounce. The magistrate held defendant to answer, and deemed the complaint to be the information.
In an amended information, the prosecutor added a second count charging defendant with a felony violation of "Section 11352(a)" (sic) for either transporting, importing, selling, furnishing, administering, or giving away marijuana (or offering to do any of those, or attempting to import or transport it). In pretrial proceedings, defense counsel objected on the ground that the evidence at the preliminary hearing (by virtue of the stipulation) did not prove that more than one ounce of marijuana was involved, and thus the offense could be charged only as a misdemeanor violation of section 11360, subdivision (b).*fn3 The prosecutor agreed. However, she noted her understanding that in fact the weight of the marijuana was more than one ounce; therefore, if the evidence at trial bore this out, she would move to amend the information again to conform to proof. The trial court modified the information accordingly (including, however, allegations of selling or furnishing in the count even though they do not appear in subdivision (b)).
At trial, the detective who arrested defendant testified that there was slightly more than one ounce of marijuana in defendant's car that was still fresh, which meant that as it dried it was possible for it to lose weight. A criminalist who later weighed the marijuana and found the total amount was just under an ounce also testified the difference in weight could be attributed to the marijuana drying out.
Based on this testimony, the prosecutor moved to amend the information to reinstate the felony charge. The trial court granted the motion (agreeing to instruct the jury that ...