Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA340954 Marcelita V. Haynes, Judge.
Murray A. Rosenberg, 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, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
Defendant Brian Womack appeals from the judgment entered following his conviction for possession of marijuana for sale. (Health & Saf. Code, § 11359.) Womack contends that there was insufficient evidence that he possessed the marijuana with the intent to sell it. We disagree, and affirm his conviction.
PROCEDURAL AND FACTUAL BACKGROUND
Womack was arrested on May 20, 2008, and charged with possession of marijuana for sale. On November 20, 2008, while out on bail, he was again arrested and, by an amended and consolidated information, was charged with another count of possession of marijuana for sale as well as a count for transporting marijuana.
Womack was tried on all three charges together, namely: count 1, for possession of marijuana for sale on May 20, 2008 (Health & Saf. Code, § 11359); count 2, for transportation of less than 28.5 grams of marijuana on November 20, 2008 (Health & Saf. Code, § 11360, subd. (b)); and count 3, for possession of marijuana for sale on November 20, 2008 (Health & Saf. Code, § 11359). The jury found Womack guilty of counts 1 and 2. As to count 3, the jury convicted Womack of the lesser included offense of simple possession of marijuana. (Health & Saf. Code, § 11357, subd. (b).) Because the trial court later discovered that the jury did not actually enter a not-guilty verdict on the count 3 offense for possession with intent to sell before proceeding to consider the lesser included offense, the court dismissed count 3 in its entirety, in the interest of justice. (Pen. Code, § 1385, subd. (a).)
The court imposed the upper sentence of three years as to the conviction on count 1, with a one-year enhancement based on Womack’s prior convictions for drug-related offenses. (Pen. Code, § 667.5, subd. (b).) As to count 2, for the offense of transporting marijuana, the court sentenced Womack to 180 days in the county jail, to be served concurrently with the sentence on count 1.
On appeal, Womack challenges only his conviction on count 1, for possession of marijuana with intent to sell on May 20, 2008. Therefore, below we discuss only the facts relevant to that May 20, 2008 offense and not the November 20, 2008 offenses. In particular, we have omitted any reference to Womack’s medical marijuana defense presented at trial because Womack does not argue on appeal that he possessed the marijuana on May 20, 2008 for his own medicinal purposes, presumably because the physician’s recommendation for medical marijuana was not issued until well after that date. The evidence presented at trial regarding the May 20, 2008 offense for possession of marijuana for sale was as follows:
A. Prosecution Evidence
1. Testimony By Arresting Officer
Officer Asia Hodge testified at trial that, at 6:00 p.m. on May 20, 2008, she and her partner set up an observation post across the street from Womack’s residence. From their undercover car, Officer Hodge observed Womack sitting in the driver’s seat of a van, parked directly in front of his residence.
At approximately 6:10 p.m., a car parked in front of Officer Hodge’s vehicle, and a man exited the car and entered the passenger side of Womack’s van. After a brief conversation, the man extended his hand towards Womack, Womack likewise extended his hand, and their hands made contact as if they were exchanging something. The man in the passenger side then appeared to place something in his pocket, exited the van, and drove off in his car. During the conversation and exchange, which took approximately 30 to 45 seconds, both men had serious demeanors.
Approximately 15 minutes later a second car stopped in the middle of the street adjacent to Womack’s van. A man exited the car and approached the driver’s side window of the van and appeared to engage in a short conversation with Womack during which neither man laughed or smiled. An apparent exchange occurred. The man then appeared to place an item inside his pants pocket and returned to his car and drove away. This interaction lasted less than one minute.
After another 15 minutes, a third man exited the home across the street and walked over to the driver’s side window of the van. Again, a brief conversation and an apparent exchange with Womack lasting approximately 30 seconds took place, after which the man returned to his home, clenching his hand as if he were carrying something. Neither Womack nor the other man was smiling or laughing during their conversation.
Approximately 10 minutes later, a car parked in front of Womack’s van, and the driver of the car got into the front passenger seat of the van. After the approach of this fourth individual, Officer Hodge called for back-up and came towards Womack’s van. As she did so, she smelled a strong odor of fresh, unburned marijuana. She also noticed on the dashboard a clear plastic bag containing a green, leafy substance resembling marijuana. The bag was later determined to contain slightly more than one-half an ounce of marijuana.
During an ensuing search of Womack’s residence, the police found a clear plastic bag containing slightly less than one ounce of marijuana as well as two digital scales. No paraphernalia or smoking devices were found in the house, the van, or on Womack’s person.
When he was detained, Womack had loose currency stuffed in his front pants pocket. Bills in various denominations, totaling $108, were individually crumpled up in a ball. He also had a wallet in his back pocket.
2. Expert Testimony From Narcotics Officer
Detective Robert Beckers, a supervising narcotics enforcement officer with the Los Angeles Police Department, testified that, based on Officer Hodge’s observations, it was his opinion that Womack intended to sell the marijuana found in his car and home, rather than consume it all himself. He based this opinion specifically on the following: (1) Womack’s interactions with four individuals that were “consistent with the methods used to sell narcotics and the way buyers approach narcotics dealers”; (2) the fact that separate bills were found crumpled up in Womack’s pocket separate from his wallet, consistent with the tendencies of drug dealers to shove money quickly into their pockets in order to hastily conclude their illicit transactions; (3) the two digital scales found inside Womack’s residence; (4) the dearth of evidence that Womack was using the marijuana himself, including the lack of any drug paraphernalia and the fact that Officer Hodge did not smell any burned marijuana when she approached Womack’s van.
B. Defense Evidence
The defense proffered testimony from expert witness John Jenks, a former undercover narcotics officer, recovering drug addict, and drug and alcohol counselor and interventionist. Jenks testified that he was not able to give an opinion on whether Womack possessed the marijuana for sale or for his personal use. Jenks stated that he could “see where someone would believe the marijuana was possessed for sale, ” and he could not “say with certainty” whether it was possessed for sale or for personal use. He opined that Womack may have possessed the marijuana for personal use because he had a relatively small amount that could be consumed by a moderate user in a short period of time, and he understood that Womack was either smoking or going to be engaged in smoking marijuana when he was arrested. On cross-examination, however, he admitted that he did not have sufficient information that Womack was a user or was about to smoke at the time of his arrest. Jenks also testified that an individual who possessed marijuana strictly for personal use might own digital scales in order to ensure that he “wasn’t being ripped off” when purchasing marijuana. He further opined that the fact that four different people had entered Womack’s car for less than a minute each did not necessarily constitute evidence that Womack was selling drugs, as the people could have been neighbors or acquaintances. On cross-examination, Jenks acknowledged that he was no longer a police officer because he had been arrested for stealing $35,000 worth of cocaine.
DISCUSSION
Womack contends there was insufficient evidence to support his conviction for possession of marijuana for sale. Unlawful possession of marijuana for sale requires proof that the defendant possessed the marijuana with the intent to sell it. (People v. Harris (2000) 83 Cal.App.4th 371, 374 (Harris).) This intent may be established by circumstantial evidence. (Ibid.)
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, 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.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal of a conviction for insufficient evidence “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.) Where substantial evidence supports a conviction, we must affirm, even though the evidence would also reasonably support a contrary finding. (People v. Towler (1982) 31 Cal.3d 105, 118.)
“Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
A conviction for possession of marijuana for sale may be upheld based on opinion testimony by an experienced officer that a defendant possessed the marijuana for sale rather than for personal use. (Harris, supra, 83 Cal.App.4th at pp. 374-375; see People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862.) In rendering such an opinion, an officer may rely on facts such as the quantity of marijuana seized, the packaging of the drug, the normal use of an individual, and the lack of drug paraphernalia found. (People v. Parra (1999) 70 Cal.App.4th 222, 227.)
In the instant case, Detective Beckers opined that Womack possessed the marijuana found in his van and residence with the intent of selling it. Relying on the first-hand observations of Officer Hodge, Detective Beckers testified that Womack’s apparent exchanges with four individuals in a short period of time were “consistent with the methods used to sell narcotics and the way buyers approach narcotics dealers.” His conclusion that Womack was selling the marijuana was supported by the fact that two digital scales were found inside Womack’s residence and by the fact that Womack, like many drug dealers who want to complete their transactions quickly, had crumpled bills of various denominations stuffed in his pocket and not in his wallet. Finally, in concluding that Womack did not possess the marijuana for personal use, Detective Beckers relied on the lack of any drug paraphernalia and the fact that Officer Hodge did not smell any burned marijuana when she approached Womack’s van.
On appeal, Womack does not challenge Detective Beckers’ expertise in distinguishing between marijuana possession for sale versus possession for personal use. (Cf. People v. Chakos (2007) 158 Cal.App.4th 357.) Instead, he contends that Detective Beckers’ opinion rests upon “only a suspicion and not substantial evidence” that Womack possessed the marijuana he was found with for the purposes of selling it. Womack relies on the fact that the police did not stop any of the men who were observed interacting with him to determine if they had bought marijuana from him, and Officer Hodge could not actually see what Womack exchanged with each of the alleged buyers or hear their conversations.
Contrary to Womack’s contention, the police need not have actually seen an exchange of marijuana or heard the men discussing a marijuana purchase for Detective Beckers properly to opine that Womack possessed marijuana for purposes of selling it. Instead, Detective Beckers’ opinion was based on a number of pieces of circumstantial evidence, described above, that supported the conclusion beyond a reasonable doubt that Womack did not possess the marijuana for personal use. (See People ex rel. Dept. of Transportation v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1086, fn. 18 [expert may properly base opinion on circumstantial evidence]; Harris, supra, 83 Cal.App.4th at p. 374 [intent to sell may be proven by circumstantial evidence].) Having heard Detective Beckers’ expert testimony that Womack intended to sell the marijuana in his van and residence, “it [was] for the jury to credit such opinion or reject it.” (Harris, supra, 83 Cal.App.4th at p. 375.)
In sum, we hold that there was sufficient evidence to support Womack’s conviction for possession of marijuana for sale.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.