California Court of Appeals, Second District, First Division
APPEAL from an order of the Superior Court of Los Angeles County. No. MA058331 Kathleen Blanchard, Judge.
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James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Leelen D. Walker was charged with possession of marijuana for sale in violation of Health and Safety Code section 11359, a felony, and convicted by a jury. During the trial, the superior court declined to instruct the jury that it could instead convict defendant of the lesser included offense of simple possession of less than 28.5 grams (one ounce) of marijuana, an infraction punishable by a $100 fine. (Health & Saf. Code, § 11357, subd. (b).) We hold the trial court prejudicially erred in omitting the instruction. Accordingly, we reverse defendant’s conviction.
On December 6, 2012, Los Angeles County Sheriff’s Sergeant Justin Diez observed defendant sitting in a car in a motel parking lot that for years had been used for gang loitering, prostitution and drug sales. A woman stood next to the car, conversing with defendant. When Diez approached the vehicle he detected the scent of fresh (unburnt) marijuana. A search of defendant’s person produced a medical marijuana card and cash totaling $249, consisting of a $100 bill, three $20 bills, four $10 bills, seven $5 bills, and fourteen $1 bills. Neither defendant nor the woman possessed any paraphernalia for
ingesting marijuana. Searching the car, Diez found a thermos bottle in the center console compartment beneath some cup holders. The thermos contained 11 plastic baggies, two of which contained a total of 7.13 grams of marijuana and nine that contained a total of 16.1 grams of marijuana, for a combined total of 23.14 grams. Defendant told Diez he had obtained the marijuana from a medical marijuana dispensary six days earlier and had already smoked some of it to alleviate pain and had given some to friends, who smoked it with him.
Defendant was arrested and charged with possession of marijuana for sale.
At trial, defendant admitted he possessed the marijuana but argued it was for his own personal use. Diez testified that in his experience, the amount and various denominations of cash defendant possessed were consistent with street-level marijuana transactions, and someone possessing marijuana for personal use would more likely keep it in a single container than repackage it in small amounts.
After the presentation of evidence, the trial court and counsel conferred off the record in chambers about jury instructions. When they came back on the record, the court acknowledged that possession of marijuana is a lesser included offense of possession for sale, but stated it would not instruct on the lesser offense because simple possession of less than 28.5 grams of marijuana is merely an infraction, and “it wouldn’t be proper” to try an infraction to a jury. Similarly, the court stated, defendant’s medical marijuana defense would not merit a jury instruction because the defense applies only to simple possession, not possession for sale. The court stated that if the jury found defendant not ...