Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. FJ43810, Charles R. Scarlett, Referee.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Eric E. Reynolds and John Yang, for Plaintiff and Respondent.
RUBIN, J.
Minor J.N. appeals from the order declaring him a ward of the juvenile court after the court found he had possessed marijuana for sale in violation of Health and Safety Code Section 11359. Minor contends the order is not supported by substantial evidence. We disagree, and therefore affirm the order.
FACTS AND PROCEDURAL HISTORY
Shortly before 8:00 p.m. on September 13, 2009, Los Angeles Police Officer Nicholas Ferars and his partner saw 16-year-old J.N. engage in a “hand-to-hand” transaction with another male in Vermont Square Park, which was “known for narcotics.” According to Ferars, minor was with five or six other people when he “cupped” something in his hand and passed it to someone else. When the officers approached in their patrol car, minor looked in their direction and quickly walked away.
The officers detained and searched minor, who told Ferars he was on probation for having a gun and that he was in possession of marijuana. Ferars found 12 plastic baggies containing a combined total of 19.88 grams of marijuana in minor’s right pants pocket, and a small make-shift booklet containing the names and phone numbers of various individuals in minor’s other pocket. Minor had no cell phone, money, scales, or smoking paraphernalia. He denied possessing the marijuana for sale, claiming instead that he planned to smoke it with his friends.
Ferars arrested minor, and a juvenile wardship petition was later filed (Welf. & Inst. Code, § 602), alleging that minor possessed the marijuana for sale, in violation of Health and Safety Code section 11359. At the hearing, Ferars testified to the circumstances leading to the minor’s arrest, and opined that minor possessed the marijuana for sale because: he had a large number of identically packaged baggies of marijuana; he had engaged in a hand-to-hand transaction; and he quickly walked away from the officers when they approached. Ferars also testified that, based on his experience, the booklet of names and phone numbers he found on minor was a “pay-and-owe booklet of narcotics users and drug dealers.”
Ferars’s qualifications as an expert witness are not disputed on appeal.
The juvenile court sustained the petition, and the minor was ordered to a six-month community camp placement, to run concurrently with a previously imposed camp placement.
DISCUSSION
Health and Safety Code section 11359 provides: “[e]very person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison.” This “requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.” (People v. Harris (2000) 83 Cal.App.4th 371, 374.) Minor argues that the evidence points to nothing more than his possession of the marijuana for personal use and contends the evidence is therefore insufficient to support the court’s finding that he possessed the marijuana with the intent to sell it. We disagree.
In determining whether sufficient evidence to support a conviction exists, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible and of solid value – from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard applies in juvenile cases and in cases where the People rely primarily on circumstantial evidence. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371; see also In re Dennis B. (1976) 18 Cal.3d 687, 697.)
The intent to sell may be established by circumstantial evidence. (People v. Harris, supra, 83 Cal.App.4th at p. 374 .) In cases involving marijuana, experienced officers may give their opinion that the drugs are possessed for sale based on the quantity, packaging and normal use of an individual. (Id. at pp. 374-375.) Under the deferential review standard set forth above, the testimony of an experienced police officer that the facts indicate the marijuana was possessed for sale is substantial evidence of the intent to sell. (People v. Douglas (1987) 193 Cal.App.3d 1691, 1695.) With these principles in mind, we conclude there was substantial evidence to support a finding that minor possessed the marijuana with the intent to sell it.
Minor was found in possession of 12 identical baggies containing a combined total of 19.88 grams of marijuana. Minor contends that because this was less than one ounce (28.5 grams), and therefore qualified as a personal use misdemeanor (Health & Saf. Code, § 11357, subd. (b)), the amount he possessed must have been for personal use. There are two flaws in his argument. First, the misdemeanor sentence for possession of less than 28.5 grams of marijuana applies “[e]xcept as authorized by law....” (Health & Saf. Code, § 11357, subd. (b).) Therefore, possession of less than 28.5 grams does not preclude a conviction of possession for sale if that amount was in fact possessed for that purpose. (See People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1391-1394 [medical marijuana use act did not preclude conviction of possession for sale].) Second, Ferars testified that it was a “large quantity” and opined that minor possessed it for sale because it was split into 12 individual baggies.
Additionally, even though the makeshift booklet found on minor did not contain payment information or mention marijuana, Ferars testified that his experience led him to believe it was a “pay-and-owe” booklet containing the names of people who either bought drugs or owed money to minor. This evidence by itself is sufficient to sustain the juvenile court’s order. Furthermore, it is unlikely the marijuana was for personal use as minor claims, because he did not have smoking paraphernalia or rolling papers on him when he was detained.
Minor contends that the book was nothing more than a phonebook that he used because he did not have a cell phone. However, this point was made only during closing arguments, and was not supported by any evidence introduced at the hearing. Regardless, it was rejected by the juvenile court, which apparently found Ferars’s opinion reasonable based on all the circumstances.
Minor contends that this was consistent with his statement to Ferars that he planned to smoke with his friends, suggesting that they were carrying the smoking paraphernalia. Because minor’s companions were not stopped and searched, there was no evidence on this point either way. Assuming that it is a reasonable inference to be drawn from minor’s statement to the police, it raises only a conflicting inference that the juvenile court was free to disregard.
Minor contends that despite all this, the fact that he had no money on him after engaging in the hand-to-hand transaction observed by Ferars shows that he had just purchased the marijuana for his own use. Otherwise, if he had just sold the marijuana, he would have had money in his possession.
This contention overlooks the fact that minor was alleged to have possessed marijuana with the intent to sell it in the future, not with the sale of marijuana based on a completed sales transaction. Drug dealers have to obtain their merchandise from someone, and one possible inference to be drawn from this chain of events is that minor had just bought the marijuana from his supplier, thereby explaining why he had no money. A hand-to-hand transaction may involve payment of money to a third person. Alternatively, as Ferars testified, the pay-owe booklet might contain the names of persons who owed money to the minor, suggesting that the minor collected from his customers later.
Substantial evidence supports the juvenile court’s finding that minor possessed the marijuana for sale. (People v. Douglas, supra, 193 Cal.App.3d at pp. 1694-1695.)
DISPOSITION
The order determining that minor J.N. was a ward of the juvenile court for having violated Health and Safety Code section 11359 is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.