Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CF1562 David A. Hoffer, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Christopher Cook challenges his conviction of possession of marijuana for sale on three grounds: First, he argues that the evidence was insufficient to show the green leafy substance he possessed was marijuana. Second, he argues that the jury should have been given the full scientific definition of marijuana. Finally, he asserts he is entitled to more presentence conduct credits than he actually received.
Cook was also convicted of methamphetamine for sale, but raises no issues on appeal as regards that conviction specifically. All statutory references in this opinion are to the Penal Code.
Argument one is unpersuasive: The arresting officer performed a “reagent test” on the substance, in which he put a small sample of it inside a plastic package with glass vials, sealed the package and broke the glass vials. The change of color of the liquid showed that the leafy substance was marijuana.
Argument two is unpersuasive as well. Giving the full scientific definition of marijuana was not necessary.
One aspect of argument three has merit. It is undisputed that Cook should have received 735 actual days credit, which, along with 366 days of conduct credit, means he should have received 1, 101 days of presentence custody credit, not the 1, 098 he was given.
The second part, raised in supplemental briefing, is doesn’t quite clear the bar. The argument is that, under recent amendments to Penal Code section 4019, Cook is entitled to additional conduct credit. The amendment changed the formula, set forth in subdivision (b) of section 4019, from one day of conduct credit for every six-day period of confinement to one day for every four-day period of confinement. Currently there is a split of authority in the appellate courts as to whether the recent amendment is retroactive.
In the yes and majority camp: People v. Keating (2010) 185 Cal.App.4th 364; People v. Pelayo (2010) 184 Cal.App.4th 481; People v. Norton (2010) 184 Cal.App.4th 408; People v. Delgado (2010) 184 Cal.App.4th 271; People v. Landon (2010) 183 Cal.App.4th 1096; People v. House (2010) 183 Cal.App.4th 1049.
However, the split need not concern us here. Subdivision (b)(2) of the amended section 4019 restores the old one-day-for-six formula for prisoners who have prior convictions for either serious or violent felonies. In this case, Cook admitted “all priors, ” which included (to be sure, relatively old) convictions kidnapping, assault with a deadly weapon, and bank robbery. While the trial judge struck these priors for purposes of sentencing under the three-strikes law, section 4019 applies to any “prior conviction” for any of the enumerated crimes.
We therefore modify the sentence to reflect the correct number of actual days, and otherwise affirm the judgment, providing for a sentence of 10 years and four months in prison.
I. FACTS
On May 5, 2007, at 8:25 a.m., Detective Caesar Flores of the Santa Ana Police Department saw Cook and another person sitting on the north wall of the Taqueria Guadalajara restaurant in Santa Ana. Flores knew the area because his police department frequently received complaints of loitering, narcotic use, and narcotics sales around that location. In fact, the restaurant had a “no trespass” notice on file with the police department.
Flores got out of his police cruiser and approached the two men. He advised them of the restaurant’s no trespass notice. He also asked if either man was on probation or parole. Cook admitted being on parole. Flores searched Cook and found a plastic sandwich bag in his pocket that contained 10.5 grams of a green leafy substance Flores recognized as marijuana.
Flores also asked Cook if the substance was marijuana. Cook’s inelegant response was, “What the fuck do you think it is?”
Flores then conducted the “reagent test” we have described above: Put some of the stuff in a bag with a vial that will react in a certain way if it comes into contact with marijuana, seal the bag, break the vial, and see what happens. The test came up positive for marijuana.
At trial, Flores was qualified as an expert in the field of illegal drugs, and gave opinion evidence that Cook possessed the marijuana for sale. His reasons: the purpose of sales, relying on the amount Cook possessed (10.5 grams is a relatively large stash for a mere user), the absence of any paraphernalia for ingesting the substance (if Cook were a mere user, why carry around only bags of it), and Cook’s presence in an area known for narcotics sales.
Flores arrested Cook and took him to the Santa Ana jail. A detention officer searched Cook and found a black nylon bag tied to the drawstring of his pants, which contained three smaller plastic bags, each with one gram of a white powder. A presumptive “reagent test” of the sort we have described for marijuana was conducted on the substance and it came up positive for methamphetamine. Subsequent laboratory analysis was also positive for methamphetamine. (The absence of lab tests on the marijuana serve as much of the basis of this appeal.)
At trial, Flores also opined that Cook possessed methamphetamine for sale, noting the location, the fact each bag contained one gram (individually packaged as it were) and the absence of any paraphernalia that a mere user would need to ingest the drug.
Cook represented himself at trial. The jury convicted him of both counts after a two day trial.
II. DISCUSSION
A. Sufficiency of the evidence
Cook made a section 1118.1 motion to dismiss the marijuana charge, which was count 2. On appeal, he argues the prosecution failed to submit evidence regarding any chemical analysis performed on the suspected marijuana, leaving Flores’ opinion as the sole evidence to support his conviction. According to Cook, evidence of an officer’s testimony alone is insufficient to support conviction beyond a reasonable doubt. We disagree.
Section 1118.1 provides in pertinent part: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
In ruling on a section 1118.1 motion for judgment of acquittal, the trial court determines “‘“whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’” (People v. Cole (2004) 33 Cal.4th 1158, 1213.) “‘Where the section 1118.1 motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point.’” (Ibid.)
Thus, the “nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence.... It may be proved, for example, by evidence that the substance was a part of a larger quantity which was chemically analyzed... by the expert opinion of the arresting officer..., and by the conduct of the defendant indicating consciousness of guilt.” (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.)
First, there is no serious issue about Flores’ expertise and familiarity with marijuana. During his nearly six years as a patrol officer, he had made “in the area of 36 different arrests involving marijuana.” He has spoken to numerous marijuana dealer and users, and received training on various types of packaging materials, the street value of different narcotics, and “various forms of paraphernalia.”
Cook challenges Flores’ expertise by pointing out that the officer is not a “chemist, ” but the officer does not need to be a chemist to have expertise in the identification of marijuana and marijuana dealers. Most dispositively, Flores personally performed the presumptive reagent test on the green leafy substance found on Cook, and it tested positive for marijuana.
And finally the jury could base its decision on Cook’s inelegant response to Flores’ direct question. Essentially, Cook admitted it was marijuana.
B. The Jury Instruction
The court gave an abbreviated version of a standard jury instruction (CALCRIM No. 2352). Cook now contends that giving the abridged version of the instruction to the jury was prejudicial error because it lessened the prosecution’s burden and removed an element of the offense (that the defendant actually possess marijuana and not something else) from jury consideration.
Here is the standard instruction in all its fullness:
The only part of the standard instruction that the trial court omitted was the scientific definition of marijuana. Basically, the court omitted the chance to give the jury a botany lesson. Here is what it wasn’t told: “Marijuana means all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. It also includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted there from), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.”
There was no error. There was no scientific chemical analysis evidence about the marijuana presented to the jury as there was on the methamphetamine. And we would note that, given the absence of any scientific debate over the green leafy substance found on Cook, the trial judge could reasonably conclude that omitted botanical definition would only have had a tendency to confuse the jury.
C. Presentence conduct credits
The trial court calculated Cook’s presentence credits to be 732 days of actual custody and 368 days of conduct credit. The parties agree that the correct figure should be 735 days of actual custody (hence the proper total would be 1101). We therefore hereby modify the judgment to reflect that Cook’s presentence conduct credits are increased to 735 days based on his 735 actual custody days. The trial court is also directed to prepare an amended abstract of judgment to that effect, and forward a certified copy to the Department of Corrections and Rehabilitation.
As to the issue of retroactivity of section 4019 for conduct credit, we have already specified the operative facts. Old section 4019’s formula was one day for every six, new section 4019’s formula is one day for every four. But, under subdivision (b)(2) of new section 4019, the formula is still one day for every six, “If the prisoner... has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony as defined in Section 667.5.” It needs no citation to establish that admitted prior convictions for kidnapping, assault with a deadly weapon and bank robbery (and we are not mentioning all of the priors here) apply. Striking priors for purposes of three-strikes sentences does not affect conduct credits under section 4019.
III. DISPOSITION
As modified, the judgment is affirmed.
WE CONCUR: BEDSWORTH, J., FYBEL, J.
In the no camp: People v. Hopkins (2010) 184 Cal.App.4th 615; People v. Otubuah (2010) 184 Cal.App.4th 422.
The question is now pending before our high court for resolution. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
“The defendant is charged [in Count ___] with possessing for sale marijuana, a controlled substance [in violation of Health and Safety Code section 11359].
“To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant possessed a controlled substance; 2. The defendant knew of its presence; 3. The defendant knew of the substance’s nature or character as a controlled substance; 4. When the defendant possessed the controlled substance, (he/she) intended to sell it; 5. The controlled substance was marijuana; and 6. The controlled substance was in a usable amount.
“Selling for the purpose of this instruction means exchanging the marijuana for money, services, or anything of value. A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user. [Marijuana means all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. [It also includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.] [It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted there from), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.]]
“[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]”