Kern County Super. Ct. Nos. BF125801, 5 F057384 Kenneth C. Twisselman II Judge.
Michelle May and John R. Hargreaves, under appointments by the Supreme Court, and Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Chatman, Jeffrey Grant and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): John R. Hargreaves Central California Appellate Program, Jeffrey Grant Deputy Attorney General
The Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5) and the Medical Marijuana Program (MMP; § 11362.7 et seq.) authorize use of marijuana for medical purposes under certain circumstances. We granted review in this case to consider issues relating to expert testimony when a criminal defendant defends against a charge of possession of marijuana for purposes of sale by introducing evidence that, under these statutes, he legally possessed the marijuana for medical purposes. Defendant Lewis Marcus Dowl, who asserted such a defense, contends the evidence at trial was insufficient to establish his intent to sell because the expert who opined at trial on that subject lacked experience distinguishing between lawful possession for medical use and unlawful possession for purposes of sale. Insofar as defendant argues the expert’s opinion was inadmissible or insufficient because the witness was unqualified, we find that defendant forfeited the argument by failing to object at trial to the witness’s qualifications. Insofar as defendant otherwise contends the evidence is insufficient to sustain his conviction, we disagree. We therefore affirm the judgment.
On Saturday, November 29, 2008, a little after 4:00 p.m., two police officers stopped defendant for playing loud music in his car. Defendant presented his driver’s license and a medical marijuana identification (ID) card with an expiration date of August 21, 2009, and said there was marijuana in the car. A search revealed $21 in cash, a WD-40 can with a hidden compartment containing marijuana residue, and a total of over two ounces of marijuana: 17.2 grams in a single bag in defendant’s pocket, three grams in each of 10 bags in the driver’s door, and 6.5 grams in each of three bags on the backseat. Defendant did not exhibit signs of being under the influence of marijuana and possessed nothing that would be used for ingesting marijuana, such as pipes or rolling papers. His belt buckle read, “CA$H ONLY.” Based on these circumstances, an information charged defendant with unlawful transportation of marijuana in violation of section 11360, subdivision (a), and unlawful possession of marijuana for purposes of sale in violation of section 11359.
At trial, Officer Jason Williamson, who was one of the arresting officers, testified that in his expert opinion, defendant possessed the marijuana for sale. He based his opinion on (1) the packaging and location of the marijuana found in the door and on the backseat, (2) defendant’s “CA$H ONLY” belt buckle, viewed in conjunction with the absence of “pay-and-owe” sheets or any written record of sales transactions, and (3) the fact that defendant was on probation for a prior conviction for possession of marijuana for sale. Regarding the first circumstance, the officer explained: “We have 10 bags all almost exactly three grams in the driver’s map compartment of the vehicle. These bags typically sell for about $5.00 a piece. The price could go up to [$]10 if it’s extremely good marijuana. We have three bags which are approximately 6.5 grams each in the backseat, again packaged with the same materials but double the value of the ones in the door. And the ones of equal size were kept in different places that I know through my training and experience to be for quick reference.” Drug dealers “know” the areas where people go to buy drugs, and “they can drive up to that area and give what they call curb service. People walk up to the door of their car.” Regarding the belt buckle, the officer testified that “CA$H ONLY” “[l]et people know if they want marijuana they got to come out with the cash, he’s not going to front it to them or take an IOU. It’s also significant in the fact that it shows his mind-set regarding the sales of narcotics and the reason why I did not find a pay-and-owe sheet or a written recordation of sales transactions because he is not giving anyone credit.” Officer Williamson also testified that, given the totality of the circumstances, defendant’s possession of a medical marijuana ID card did not affect his opinion. He also testified that he had been a police officer for nine years, had received training in identifying marijuana possessed for personal use and marijuana possessed for sale, and had received no training in determining the validity of a medical marijuana ID card.
In his defense, defendant claimed he possessed the marijuana, not unlawfully for purposes of sale, but lawfully for purposes of medical treatment. According to the evidence he offered at trial, including his own testimony, he obtained a prescription for marijuana from his doctor to help with chronic pain and insomnia related to a 2007 shoulder injury. He obtained a medical marijuana ID card from the Kern County Health Department in Bakersfield in July 2008, and it was valid at the time of his arrest. He smoked marijuana in cigars and was carrying a cigar “splitter” on his keychain at the time of his arrest. He purchased the marijuana at a medical marijuana dispensary in Los Angeles, but could not recall the dispensary’s name. The marijuana came packaged in a single bag. He divided it into separate bags, based on the amount he smoked on a daily basis and because small bags are easier to carry. A small bag would fit into the secret compartment of the WD-40 can found in his car upon his arrest, which was where he stored his marijuana at work. There were many bags in the door and on the backseat because he had been in a rush and had thrown them into the car. He denied selling marijuana, but admitted having previously been convicted of possession of marijuana for sale.
The jury convicted defendant of both unlawful transportation and possession of marijuana. The court sentenced him to three years in prison.
On appeal, defendant argued in relevant part that his convictions should be reversed because the evidence at trial was insufficient to establish he possessed the marijuana for purposes of sale. Officer Williamson’s opinion testimony was not evidence of this fact, defendant asserted, because he needed, but lacked, experience in differentiating those who possess marijuana lawfully for medical purposes from those who possess it unlawfully with the intent to sell.
Defendant relied on two cases: Peoplev.Hunt (1971) 4 Cal.3d 231 (Hunt) and Peoplev.Chakos (2007) 158 Cal.App.4th 357 (Chakos). In Hunt, a jury convicted the defendant of unlawful possession for sale of a restricted dangerous drug, methedrine. On appeal, we reversed that conviction for two reasons: (1) nondisclosure of an informer’s name; and (2) insufficient evidence. (Hunt, supra, 4 Cal.3d at pp. 237-241.) Regarding the latter ground, we reasoned that, “in the circumstances of this case, ” a police officer’s testimony that the defendant possessed methedrine for sale was not “substantial evidence to support the conviction.” (Id. at p. 237.) We explained: “In cases involving possession of marijuana and heroin, it is settled that an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale based upon matters such as quantity, packaging, and the normal use of an individual. On the basis of such testimony convictions of possession for purposes of sale have been upheld. [Citations.] [¶] A different situation is presented where an officer testifies that in his opinion a drug, which can and has been lawfully purchased by prescription, is being held unlawfully for purposes of sale. In the heroin and marijuana situations, the officer experienced in the narcotics field is experienced with the habits of both those who possess for their own use and those who possess for sale because both groups are engaged in unlawful conduct. As to drugs, which may be purchased by prescription, the officer may have experience with regard to unlawful sales but there is no reason to believe that he will have any substantial experience with the numerous citizens who lawfully purchase the drugs for their own use as medicine for illness. [¶] In the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officer’s opinion that possession of lawfully prescribed drugs is for purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction. No such special circumstances were shown here as to the methedrine in the blue and white travel case.” (Id. at pp. 237-238.)
In Chakos, the Court of Appeal held that, under Hunt, when a defendant offers evidence he lawfully possessed marijuana for medical purposes, a police officer’s opinion testimony that the defendant possessed the marijuana for sale does not constitute substantial evidence to convict unless the officer has “expertise in distinguishing lawful patterns of possession from unlawful patterns of holding for sale.” (Chakos, supra, 158 Cal.App.4th at p. 367.) The court found that the testifying officer in Chakos “was unqualified to render an expert opinion” because “[t]he record fail[ed] to show” he was “any more familiar than the average layperson or the members of this court ...