Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 08CEJ601606-1 Timothy Alan Kams, Judge.
Courtney Michele Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Hill, J., and Kane, J.
OPINION
The court found that appellant, A.M., was a person described in Welfare and Institution Code section 602, subdivision (a) after it sustained allegations charging appellant with possession for sale of marijuana (Health & Saf. Code, § 11359). On December 10, 2008, the court declared the offense to be a felony, set appellant’s maximum term of confinement at three years, and ordered appellant to serve a maximum of three months at home on the Juvenile Electronic Monitoring Program. On appeal, appellant contends: 1) the evidence is insufficient to sustain the court’s finding that he possessed marijuana for sale; and 2) the court erred in setting a maximum term of confinement. We will find merit to this latter contention. In all other respects, we will affirm.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTS
On October 29, 2008, Fresno Police Officer Luke Chow was dispatched to appellant’s house and spoke with his father. Appellant’s father took Officer Chow to the garage and showed him two plastic trash bags. One bag contained a yellow-brown leafy substance and weighed approximately 300 grams. The other bag weighed approximately 3.25 kilograms and contained green marijuana plants that were alive.
Officer Chow asked if appellant was home and was taken to appellant’s room. Appellant told the officer that on his way home from school, while passing through an open field, he saw two plastic bags on the ground and picked them up. Appellant looked inside the bags and saw what appeared to be marijuana. He took the bags home because it was “sort of like a jackpot” for him. Officer Chow and other officers searched appellant’s room but did not find any contraband.
On the way to the police station, appellant told Officer Chow that he wanted to change his statement and that he did not find the bags in a field. Instead, while walking home he noticed the smell of marijuana coming from a garage. Appellant entered the garage, found the two bags, and took them.
Fresno Police Officer Anthony Bettencourt testified as an expert that based on the amount of marijuana recovered, it was possessed with the intent to sell.
DISCUSSION
The Sufficiency of the Evidence Claim
Appellant contends that quantity alone is insufficient to support the court’s finding that he possessed the marijuana found in the two bags with the intent to sell. Thus, according to appellant, the evidence is insufficient to support his adjudication for possession for sale of marijuana. We disagree.
“ ‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citations.]’ [Citation.]
“In order to secure a conviction [for possession for sale of a controlled substance], the prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it. [Citations.]” (People v. Parra (1999) 70 Cal.App.4th 222, 225-226, italics added.)
Appellant challenges only the sufficiency of the evidence to show that he possessed the marijuana at issue with the specific intent to sell it. People v. Parra, supra, 70 Cal.App.4th 222 is dispositive of this claim. In Parra, after defendants were stopped for a traffic violation, officers searched the car and found a kilogram of cocaine hidden behind the dashboard. (Id. at p. 225.) At trial, two officers testified as experts that the evidence was possessed for sale. A jury convicted the defendants of transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)) and possession for sale of a controlled substance (Health & Saf. Code, § 11351). In rejecting the defendants’ claim that the evidence was insufficient to support their possession for sale conviction, the Parra court stated:
“[W]e find that there was sufficient evidence to support defendants’ conviction for possession with an intent to sell. Both Officer Hoffman and Detective Corbin, experienced narcotics interdiction officers, testified that, based on the quantity of the controlled substance seized and lack of drug paraphernalia in the car, defendants possessed cocaine with the specific intent to sell. It is well settled that ‘... experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.’ [Citations.] [¶] Therefore, there was sufficient evidence to support defendants’ conviction for violation of Health and Safety Code section 11351.” (Id. at p. 227, italics added.)
Here, appellant was found in possession of a bag containing approximately 300 grams of marijuana and a second bag weighing approximately 3.25 kilograms that contained live marijuana plants. Further, Officer Bettencourt testified as an expert that the marijuana was possessed for sale and no drug paraphernalia was found during a search of appellant’s room. Additionally, the court could reasonably infer from the absence of evidence of personal use and appellant’s statement about a “jackpot,” that the “jackpot” appellant alluded to was being able to make money by selling the marijuana. It could also reasonably find that appellant’s possession of numerous live marijuana plants was another indication that appellant possessed the marijuana with the intent to sell.
Appellant contends Parra is distinguishable because the defendants there were “of the age of maturity,” there was a discussion of the manner in which the drugs were packaged, and the drugs were hidden in a sophisticated manner. We disagree. The Parra court did note that one officer based his opinion of possession for sale on three additional factors: 1) the way the cocaine was packaged; 2) the fact that it was concealed behind the dashboard; and 3) the fact that neither defendant appeared to be under the influence. (People v. Parra, supra, 70 Cal.App.4th at p. 225.) However, in finding the officers’ opinion sufficient to sustain the defendants’ convictions for possession for sale of cocaine, the court cited only the officers’ reliance on the quantity of cocaine found and the absence of drug use paraphernalia in the defendant’s car. (Id. at p. 227.) It also cited case law holding that an officer’s opinion that narcotics are possessed for sale is sufficient to sustain a finding of an intent to sell even when it is based only on a defendant’s possession of a large quantity of narcotics and the absence of evidence of personal use. (Id. at p. 227.) In any event, as noted above, in addition to the quantity of marijuana possessed and the absence of evidence of personal use, appellant’s possession of live marijuana plants and his “jackpot” statement provide additional support for the court’s finding that he possessed the marijuana found in his possession with the intent to sell it.
Appellant also contends that the instant case is distinguishable from Parra because the record here contains evidence of his personal use of marijuana. However, no such evidence was presented during appellant’s adjudication hearing.
Appellant also cites People v. Harris (2000) 83 Cal.App.4th 371 and People v. Peck (1996) 52 Cal.App.4th 351 to claim the evidence of his intent is insufficient here. In each case, the appellate court found an officer’s opinion and other evidence sufficient to sustain the defendant’s conviction. In Harris, the defendant was an inmate at Atascadero State Hospital and was found in possession of a large quantity of marijuana and methamphetamine and more than 800 postage stamps. Stamps were used by patients at the hospital to buy contraband. (People v. Harris, supra, 83 Cal.App.4th at pp. 373-374.) In finding the officer’s testimony in Harris sufficient to support the jury’s finding that the defendant possessed the drugs for sale, the court stated, “The large quantity of drugs, the postage stamps, and the manner in which the drugs were smuggled into the hospital supported Sergeant Holland’s opinion that appellant possessed the drugs for sale.” (Id. at p. 374.)
In Peck, the defendant was the president and priest of a religious group that used marijuana as a sacrament. The defendant was apprehended at a checkpoint with 40 pounds of marijuana in the trunk and $2,350 under the dashcover. The trial evidence included a sheriff investigator’s opinion that, based on the quantity of marijuana the defendant possessed, the contraband was possessed with the intent to sell.
On appeal, the defendant argued that, notwithstanding the investigator’s testimony, the evidence was insufficient to show that he intended to sell the marijuana because he testified without contradiction that he intended only to give the marijuana away. In rejecting this argument, the court noted that, at least as to the members who contributed money to the church, a transfer of marijuana for money had occurred. The court also noted that the defendant had received marijuana above what he paid for in exchange for providing the marijuana and that this amounted to a transfer of marijuana for a consideration other than money. (People v. Peck, supra, 52 Cal.App.4th at p. 357.)
Neither Harris nor Peck is controlling. Although each case involved circumstances in addition to expert testimony that supported a finding in each case that the defendant had the intent to sell the contraband in his possession, neither case purported to require more than the expert’s opinion to establish this intent. Accordingly, we reject appellant’s challenge to the sufficiency of the evidence to sustain his adjudication for possession for sale of marijuana.
The Maximum Term of Confinement
Section 726, subdivision (c) provides, “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.”
Section 726 does not require the court to specify a maximum term of confinement if the minor is not removed from the physical custody of his parents. (In re Ali. A. (2006) 139 Cal.App.4th 569, 573.) Since appellant was released to the custody of his parents, the court erred in determining his maximum term of physical confinement. That term is of no legal effect. Because the minor is not prejudiced by the presence of this term, no further action is necessary. (Id. at p. 574.)
One appellate court deemed it necessary to strike the term of imprisonment because the practice of specifying prison terms in violation of section 726 (c) continued despite the court’s criticism in prior opinions. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) We are not aware of such a practice in this district and therefore agree with the Ali court that no further action by this court is warranted.
DISPOSITION
The judgment is affirmed.