Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR253476
RIVERA, J.
Defendant Nolan Matthew Cardwell appeals a judgment entered upon a jury verdict finding him guilty of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) (count one); possession of marijuana for sale (§ 11359) (count two); and possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)) (count three). Defendant was placed on probation for three years. He contends the evidence was insufficient to support the verdicts and that the trial court committed instructional error that prevented him from presenting fully his medical marijuana defense. We affirm the judgment.
All undesignated statutory references are to the Health and Safety Code.
I BACKGROUND
Police officers and sheriff’s deputies searched defendant’s car and home in the City of Dixon pursuant to a search warrant on March 6, 2008. In the trunk of the vehicle, they found a gym bag containing a plastic bag of marijuana. The bag with marijuana weighed approximately three quarters of a pound. Two $20 bills were found inside the console. A small silver baseball bat was wedged between the driver’s seat and the console. The bat had nicks on it, and was not in new condition, but still had some plastic packaging wrapped around it. Marijuana was found on top of a dresser in the master bedroom. Defendant’s wallet was also found in a drawer. It contained $256 in cash. Another $695 in cash was found next to the wallet. The dresser also contained a small digital scale, with marijuana residue on top. Inside the garage was a larger digital scale and a plastic bag containing more marijuana. A cigar box inside the closet contained $5,660 in cash.
An analysis later showed that the bag in the car contained 322.9 grams of marijuana, and that the other bags contained 13.37 grams and.41 grams of marijuana, for a total of 336.68 grams.
Matthew Carter, a friend of defendant, testified that he had smoked marijuana with defendant in the past, and that they had smoked together a few days before defendant’s home was searched. Defendant provided the marijuana, without payment. Carter did not have a medical marijuana card. Carter testified that he had seen defendant selling marijuana on one occasion, which he said “must have been awhile ago.” On that occasion, defendant went to the trunk of his car to get the marijuana. On cross-examination, Carter said he had been in the passenger seat when defendant went to the trunk, and did not see what was going on at the back of the vehicle, although he saw “the guy” hand defendant money. Carter acknowledged that he did not want defendant to get into trouble.
Carter first said that he had not smoked marijuana from 1991 until he got off parole eight months before he testified in April 2009, and that he had smoked with defendant five, six, or seven times since then. He then acknowledged that he had smoked with defendant before he got off parole.
Defendant’s former girlfriend, Bobbie Thibeau, testified that she and defendant were living together at the time of the search. According to Thibeau, defendant was working for a company called Tile and Stone at the time. She and defendant would smoke marijuana together. Sometimes defendant provided the marijuana, and other times they got it from “the club.” Thibeau had a prescription for medical marijuana.
Detective Ronnie Sefried of the Dixon Police Department was present during the search. He spoke with Carter, who told him he had been with defendant when defendant had sold marijuana to “a lot” of other people; that he saw “hand-to-hand” transactions in which money was given in exchange for marijuana; that defendant would go to the trunk of his vehicle to get the marijuana; and that he had been with defendant when defendant weighed out and sold marijuana. He had last seen defendant sell marijuana a few days previously. He said he had seen defendant with pounds of marijuana in the past.
Sefried also spoke with Thibeau. He asked her whether defendant had a job, and she said that defendant got up with her every morning when she got up, but that other than that, she did not know what he was doing. Thibeau told Sefried that defendant gave marijuana to her, and that he also gave it to other people.
Defendant acknowledged to Sefried that the marijuana in the vehicle and the cash at the home belonged to him. He said the money was his life savings, and that he did “side work.” Defendant told Sefried he got the marijuana at clubs, and that he might grow it. He said the bat was for him and his son.
Deputy John Arabia of the Solano County Sheriff’s Office testified as an expert in the possession of marijuana for sale and for medicinal purposes. As relevant here, he testified that during his 20 years as a peace officer, he had spoken with people who used marijuana about various things, including the prices associated with different amounts of marijuana, how much marijuana it took to get high, how long the high would last, and the different ways to ingest marijuana. He had also spoken with marijuana dealers about the amounts of marijuana they sold, the cost of various amounts of marijuana, how marijuana was packaged for sale, how it was transported, where it was kept, and whether sellers usually kept marijuana in more than one spot. He had taken a course on the medical use of marijuana put on by the California Narcotics Officers’ Association. The course dealt with differentiating the medicinal use of marijuana from other uses. He had qualified as an expert in the possession of marijuana for sale, recognition of marijuana, and the medical use of marijuana.
Arabia expressed the opinion that the marijuana was possessed for sale. He based his opinion on several things. The digital scales, which were accurate to the tenth of a gram, were not of the type used in kitchens, but were typically used by drug dealers. In Arabia’s experience, marijuana users did not typically bring scales to buy marijuana, and never weighed it before smoking it. There was no paraphernalia, such as pipes, bongs, or grinders, on the property. There was “quite a bit” of marijuana, broken up and put in different places, and there was a large amount of cash. Drug dealers typically did not keep their money and drugs together in one place, both out of fear of being robbed and from concern about detection by law enforcement, and they typically kept large amounts of cash rather than using bank accounts. Arabia also noted that the money found was primarily in $20 bills; this was significant because a gram of marijuana sold for about $20. The marijuana in defendant’s possession was worth approximately $3,600 to $4,200.
In Arabia’s experience, people ordinarily kept marijuana for their personal use for only a short period of time, and would have perhaps an eighth or a quarter of an ounce, because marijuana loses potency over time. To use the amount of marijuana in defendant’s possession in 64 days, someone would have to smoke one joint every fifteen minutes for sixteen hours a day. Someone who used a quarter ounce a week would take approximately a year to use the whole supply. Marijuana could be cooked into brownies, but this method of ingesting it was less cost-effective than smoking. Arabia did not know of anyone, including people who visited cannabis clubs, who bought several months worth of narcotics at a time for personal use.
A joint was typically between a third of a gram and a full gram.
No “pay/owe sheets” were found, which can be used to record who owes drug dealers money. Arabia attached no significance to this, because drug dealers were aware of the risks of being found with pay/owe sheets, and most did not keep them any more.
A BB gun resembling a real gun was also seized; drug dealers commonly carried either real guns or objects that looked like guns. Arabia also discussed the bat found in the car. He noted that no cleats, baseballs, or baseball gloves were found in the car, and that the bat still had packaging or wrapping on it, although normally the packaging would be removed before playing baseball with a bat. The bat was close to the largest stash of marijuana. Arabia opined it was kept as a form of protection.
Arabia testified on cross-examination that he was not familiar with the typical price of marijuana at a cannabis club. Arabia testified that there were no cannabis clubs in Fairfield or Dixon, and that the nearest used to be in Vallejo, although he did not know if that club was still open. He knew of clubs in San Francisco, and thought there were clubs in Oakland and possibly Berkeley. He did not know whether marijuana was available at Walgreens drug stores, but knew that Kaiser’s pharmacy did not carry it. He acknowledged that the lack of packaging materials, individual baggies of marijuana, and scales in the trunk of car were factors that would suggest the marijuana was intended for personal use, if the amount of marijuana had not been so great.
A doctor had recommended that defendant use marijuana, and had recommended three pounds of dried cannabis, and no more than 19 immature or 10 mature cannabis plants. Arabia had never known anyone to possess three pounds of marijuana for personal use, and had never known personal users of marijuana to buy a 100-day supply of marijuana at a time. Arabia was familiar with the name of the doctor who had provided the recommendation, and often saw it on recommendations when he was arresting people in possession of larger amounts of drugs for sale of marijuana. He did not recall seeing other physicians recommend that someone possess as much as three pounds of marijuana.
II DISCUSSION
A. Substantial Evidence of Marijuana Offenses
Defendant’s first contention is that Arabia’s testimony and Carter’s statements do not provide substantial evidence to support his convictions on counts one and two. In reviewing such a claim, our 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. [Citation.’]” (People v. Story (2009) 45 Cal.4th 1282, 1296.) “ ‘[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
1. Arabia’s Expert Testimony
Relying on People v. Chakos (2007) 158 Cal.App.4th 357 (Chakos), and People v. Hunt (1971) 4 Cal.3d 231 (Hunt), defendant argues that Arabia lacked expertise in the medical use of marijuana, that Arabia was therefore not qualified to render an opinion on what amount was reasonable for defendant’s medical needs, and that as a result the convictions of the marijuana offenses were not supported by substantial evidence.
California’s Compassionate Use Act of 1996 (§ 11362.5) (CUA), provides in pertinent part that “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d).) Under the CUA, the only limit on how much marijuana a person may possess is that “it must be ‘ “reasonably related to the patient’s current medical needs.” ’ [Citation.]” (People v. Kelly (2010) 47 Cal.4th 1008, 1027.)
The defendant in Chakos was found with a total of six ounces of marijuana in his possession, and convicted of possessing the marijuana for sale. (Chakos, supra, 158 Cal.App.4th at p. 359.) The conviction was based on the testimony of the arresting officer, Deputy Sheriff Christopher Cormier, who testified both as a percipient witness and as an expert witness. (Id. at p. 360-361.) A search of the defendant’s car and home revealed the marijuana, $781 in cash, a doctor’s slip for lawful marijuana use, 99 empty baggies (of the sort used in the defendant’s profession as a phlebotomist), a digital gram scale, and a closed-circuit camera system. (Ibid.) Cormier testified that the totality of the circumstances, including the fact that the marijuana in the car was not packaged for personal use, and the presence of packaging material, a scale, and a surveillance camera system, led him to conclude that the marijuana was possessed for sale. (Id. at pp. 361-362.)
Cormier’s qualifications as an expert were that he had both general training and narcotics training, including training in packaging, drug identification, and growing, selling, and packaging marijuana; that he had assisted in more than a hundred investigations for possession and sale of narcotics; he had spoken to people who sold and bought narcotics about the amounts they bought, sold and used; he could identify marijuana; and he had seized “ ‘indoor grows.’ ” (Chakos, supra, 158 Cal.App.4th at p. 361.) However, he had never arrested anyone with a medical marijuana recommendation. (Id. at p. 362.) On appeal, the defendant argued there was insufficient evidence to sustain the conviction because Cormier did not have expertise in the medical use of marijuana. (Id. at p. 363.) The Court of Appeal agreed, relying on Hunt. (Id. at pp. 363-369.) In Hunt, our Supreme Court had ruled that the evidence that the defendant held methedrine for sale did not support the judgment: the officer who opined that the drugs were held for sale had extensive training, education, and experience relating to possession and trafficking in dangerous drugs, but there was no indication he had substantial experience with citizens who lawfully purchased the drug as medicine for illness. (Hunt, supra, 4 Cal.3d at pp. 234-235, 237-238.) The Chakos court concluded that Hunt controlled, noting that the norm was not for marijuana to be distributed through controlled channels, and that “expertise in distinguishing lawful patterns of possession from unlawful patterns of holding for sale” was “conspicuously missing” in the case before it. (Chakos, supra, 158 Cal.App.4th at p. 367.) Explaining that the record did not show that Cormier was “any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale, ” the court concluded he was unqualified to render an expert opinion, and under Hunt, the evidence was not sufficient to sustain the judgment. (Id. at pp. 368-369.)
The question of “whether the People, when confronted with a medical marijuana defense, must call an expert with experience distinguishing lawful, medical possession from unlawful possession to establish that defendant possessed marijuana for sale, ” is currently pending before the California Supreme Court. (People v. Dowl (2010) 183 Cal.App.4th 702, review granted July 21, 2010, S182621, Supreme Court order, Nov. 10, 2010, S182621.)
Defendant contends that, like the officer in Chakos, Arabia was not qualified to render an expert opinion on the medical use of marijuana. In reviewing this claim, we are guided by the principle that “[e]rror regarding a witness’s qualifications as an expert will be found only if the evidence shows that the witness ‘ “ ‘clearly lacks qualification as an expert.’ ” ’ [Citation.]” (People v. Farnam (2002) 28 Cal.4th 107, 162.) We cannot conclude that Arabia clearly lacked qualification as an expert in the medical use of marijuana. Apparently in response to the Chakos decision, Arabia took a course presented by the California Narcotics Officers’ Association dealing specifically with the medical use of marijuana. The course taught the participants about differentiating the medicinal use of marijuana from other uses, including sale. Arabia had at least twice been qualified in court as an expert in the medicinal use of marijuana. Moreover, his testimony indicated he had spoken with people who visited cannabis clubs about the amount of marijuana they bought for their personal use, and that none purchased several months’ worth at a time.
Defendant argues, however, that Arabia did not have expertise in differentiating medicinal from non-medicinal use of marijuana, pointing out that he had not visited a marijuana club and did not know the price of marijuana in such clubs, and that he had never spoken with a medical doctor who recommended marijuana. However, “ ‘ “Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility.” ’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 322.) Unlike the court in Chakos, we cannot say that Arabia was no more familiar than the average layperson with the patterns of lawful possession of marijuana for medicinal use as distinguished from possession for sale. (See Chakos, supra, 158 Cal.App.4th at pp. 368-369.) Accordingly, his expert testimony was properly admitted, and provides substantial evidence to support a conclusion that defendant possessed the marijuana for sale.
A key part of Arabia’s testimony was that at the rate of a quarter of an ounce a week—the rate defendant told his doctor he smoked marijuana—it would take almost a year for defendant to use the supply in his possession, and that marijuana users typically bought much smaller quantities because marijuana loses its potency over time. Defendant does not attempt to explain why a person who uses marijuana for medicinal uses would be less concerned than other users about the efficacy of the drug. As recognized in People v. Windus (2008) 165 Cal.App.4th 634, 643 (Windus), the rule is that the quantity possessed should be reasonably related to the patient’s current medical needs; even with a physician’s recommendation or approval, a person may not possess a greater amount.
1. Carter’s Out-of-Court Statements
Defendant also argues that Carter’s out-of-court statements do not provide substantial evidence that he possessed marijuana with the intent to sell it. As we have discussed, Carter told Detective Sefried on the day of the search that he had seen defendant sell marijuana to “a lot of people, ” that defendant sold it from the trunk of his car, and that the last time was a few days or a week previously. Defendant contends these prior statements were untrustworthy, because they were given under very stressful conditions and because Carter partially repudiated them in court when he testified he had seen defendant sell marijuana from his car on one occasion. We reject this contention. Carter testified under subpoena, and acknowledged at trial that he did not want defendant, who was his friend, to get into trouble. The jury could reasonably view with distrust the testimony that contradicted his earlier statements. In any case, even Carter’s trial testimony indicated that defendant had sold marijuana from the trunk of his car in the past.
Defendant did not object to the evidence of these prior statements on hearsay grounds at trial, and has waived any such objection. (Evid. Code, § 353, subd. (a).)
B. Substantial Evidence of Deadly Weapon
Defendant contends the evidence is insufficient to show the baseball bat was a deadly weapon. Penal Code section 12020, subdivision (a)(1), prohibits the possession of, among other things, “any instrument or weapon of the kind commonly known as a... billy...” An object with innocent uses may fall within the terms of this statute if the prosecution proves “that the object was possessed as a weapon. The only way to meet that burden is by evidence ‘indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.’ [Citation.] The evidence may be circumstantial, and may be rebutted by the defendant with evidence of ‘innocent usage.’ [Citation.]” (People v. Fannin (2001) 91 Cal.App.4th 1399, 1404; see also id. at p. 1406 [ordinary bicycle lock could be “slungshot” for purposes of Pen. Code § 12020, subd. (a)(1)].) As explained in People v. King (2006) 38 Cal.4th 617, 624, “an item commonly used for a nonviolent purpose, such as a baseball bat or a table leg, could qualify as a billy, but only ‘when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose.’ [Citation.]” Our Supreme Court in People v. Grubb (1965) 63 Cal.2d 614, 616, 621, considered whether a baseball bat from which the handle had been broken could be considered a billy, and concluded that in the circumstances of the case, “the possession of [an] altered baseball bat, taped at the smaller end, heavier at the unbroken end, carried about in the car, obviously usable as a ‘billy, ’ clearly not transported for the purpose of playing baseball, violates the statute.” (Id. at p. 621.) Expert testimony may be admitted on the question of whether an object falls within the definition of a prohibited object. (People v. Deane (1968) 259 Cal.App.2d 82, 89.)
The court in People v. Mayberry (2008) 160 Cal.App.4th 165, 171-172 and fn. 9, suggests that an item commonly used for nonviolent purposes falls within Penal Code section 12020, subdivision (a)(1), only if it is altered, like the baseball bat in Grubb. We do not read Grubb so narrowly; Grubb adopted a test for the term “billy” “to encompass, first, instruments dangerous in their ordinary use and, second, in some circumstances, instruments not dangerous in their ordinary use.” (Grubb, supra, 63 Cal.2d at p. 621, fn. 8.) The altered baseball bat, the court went on, had possibly “been so altered from its original condition that it falls into the first category.” (Ibid.) The court did not hold that an unaltered bat could not fall into the second category—that is, instruments not dangerous in their ordinary use—as long as “the circumstances of possession [of the ordinarily harmless object] demonstrate an immediate atmosphere of danger.” (Id. at p. 621, and fn. 8.) The court was quick to point out, however, that “the section would not penalize the Little Leaguer at bat in a baseball game.” (Id. at p. 621.)
Although this is a close question, we conclude the evidence is sufficient to support the conviction. It is true that defendant offered an innocent explanation for his possession of the bat—that he had it to play baseball with his son. However, from the totality of the circumstances, including the facts that defendant sold drugs from his car, that the bat was within easy reach of the driver’s seat of the car that contained the largest stash of marijuana, that it still had packaging or wrapping on it, although it was not in new condition, and that there was no other sign of baseball gear in the car, a jury could reasonably conclude that the bat was kept for protection, rather than for use as sports equipment.
C. Instruction on CUA Defense
Defendant contends the trial court erred in refusing a proffered instruction on the medical marijuana defense. “In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence.” (People v. Earp (1999) 20 Cal.4th 826, 885.) “[N]o particular form [of instruction] is required as long as the instructions are complete and correctly state the law.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585 (Andrade).) A trial court properly refuses to give a proffered instruction if it is an incorrect statement of the law. (People v. Gurule (2002) 28 Cal.4th 557, 659.)
The trial court instructed the jury on defendant’s medical marijuana defense as follows: “[I]f the defense of medical marijuana is raised, the burden is on the defendant to produce sufficient evidence to raise a reasonable doubt that possession of marijuana was lawful. [¶] The amount of marijuana possessed... must be reasonably related to the patient’s current medical needs. [¶] In deciding whether marijuana was transported or possessed for medical purposes, also consider whether the method, timing, distance, and surrounding circumstances were reasonably related to that person’s medical needs.”
The trial court refused to give an instruction submitted by defendant, which contained the second two paragraphs of the instruction quoted above, but included the following introductory language in place of the first paragraph: “[Possession for Sale or Transportation for Sale of Marijuana] is not unlawful if it is authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or transport marijuana for medical purposes or to distribute marijuana when providing assistance to a qualified patient or person with an identification card so long as it done so [sic] for medical purposes to the qualified patient or person. Any person who provides marijuana to a qualified patient or person with an identification card does not do so unlawfully within the means [sic] of Health and Safety Code section [11360(a) or [11359].” Defendant contends the trial court’s refusal to give this instruction prevented him from presenting a defense that he furnished marijuana as a qualified caregiver.
The proposed instruction also allocated to the People the burden to prove defendant was not authorized to possess, transport, or sell marijuana for medical purposes. This is an inaccurate statement of the law. The defendant bears the burden to raise a reasonable doubt as to the facts underlying a CUA defense. (People v. Mower (2002) 28 Cal.4th 457, 476-481 (Mower).)
Defendant points out correctly that the CALCRIM instruction on the CUA includes not only the second two paragraphs of the instruction actually given, but also an introductory statement—from which the proposed instruction was partially derived—that “Possession or transportation of marijuana is not unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or transport marijuana (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) when a physician has recommended [or approved] such use.” (CALCRIM No. 2361, second italics added; see § 11362.5, subd. (d).) Echoing the language of the CUA, “primary caregiver” is defined in the instruction as “someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.” (CALCRIM No. 2361, italics added; see § 11362.5, subd. (e).) The instruction defendant proposed however, eliminated the statutory requirement that to qualify for a CUA defense, the person possessing or cultivating marijuana for another be a “primary caregiver, ” as defined in the statute. (See People v. Mentch (2008) 45 Cal.4th 274, 282-287 (Mentch).) The trial court did not err in refusing to provide a legally incorrect instruction.
Moreover, the record contains no evidence that defendant was in fact a primary caregiver to any medical marijuana patient. Defendant argues that “the evidence is undisputed the [he] assumed responsibility for supplying his girlfriend’s need for marijuana.” The law is clear that simply providing marijuana does not make someone a primary caregiver. (Mentch, supra, 45 Cal.4th at pp. 284-285; Mower, supra, 28 Cal.4th at p. 475; Windus, supra, 165 Cal.App.4th at p. 644.) Rather, as explained in Mentch, “a primary caregiver must establish that he or she satisfies the responsibility clause based on evidence independent of the administration of medical marijuana. Under the [CUA], a primary caregiver relationship is a necessary antecedent, a predicate for being permitted under state law to possess or cultivate medical marijuana. The possession or cultivation of marijuana for medical purposes cannot serve as the basis for making lawful the possession or cultivation of marijuana for medical purposes; to conclude otherwise would rest the primary caregiver defense on an entirely circular footing.” (Mentch, supra, 45 Cal.4th at pp. 284-285.) In the absence of any evidence in the record that defendant had been designated as a primary caregiver and had consistently assumed responsibility for the housing, health, or safety of a medical marijuana patient (see § 11362.5, subd. (e)), the trial court was not obliged to instruct the jury on the primary caregiver defense.
Defendant also contends the instruction given to the jury was inadequate because it did not state explicitly that possession or transportation of marijuana was lawful if authorized by the CUA. We reject this contention. Although the instruction did not mention the CUA, it made clear that a defense to the charges was available if defendant raised a reasonable doubt that possession of marijuana was lawful, and that under this defense the amount of marijuana must be reasonably related to his current medical needs. Although the instruction deviated from the CALCRIM pattern instruction, it was a complete and accurate statement of the law. (See Andrade, supra, 85 Cal.App.4th at p. 585.)
D. Refusal of Instruction on Lesser Included Offense
Defendant contends the jury should have been instructed on the misdemeanor offense of giving away or transporting less than 28.5 grams of marijuana as a lesser included offense. (§ 11360, subd. (b).)
The jury was instructed pursuant to CALCRIM No. 2350 on the elements of a violation of section 11360, subdivision (a). Under the instruction given, the jury was told that to prove defendant’s guilt, the People must prove that defendant either sold or furnished a controlled substance; that he knew of its presence and its nature or character as a controlled substance; and that the substance was marijuana in a usable amount. Defendant asked to have the jury instructed on the elements of section 11360, subdivision (b) as well, under which it is a misdemeanor to give away, transport, offer to transport, or attempt to transport not more than 28.5 grams (approximately one ounce) of marijuana. (See CALCRIM No. 2360.) The prosecutor opposed the instruction, arguing that section 11360, subdivision (b) was not applicable when a defendant was charged with selling marijuana in addition to furnishing it. The trial court refused the proffered instruction.
Section 11360, subdivision (a) provides: “Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.”
Even in the absence of a request, a trial court has a duty to instruct on a lesser included offense if there is substantial evidence that the defendant is guilty of the lesser offense, but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).) “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) “An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears ‘ “reasonably probable” ’ the defendant would have obtained a more favorable outcome had the error not occurred. [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 716; see also Breverman, supra, 19 Cal.4th at p. 178; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant contends the trial court erred in refusing to instruct the jury on section 11360, subdivision (b). According to defendant, if the jury had received the instruction, it might well have concluded that the amount of marijuana defendant furnished or transported illegally was less than 28.5 grams, and the remaining portion of the marijuana was for his personal medical use. (See People v. Trippet (1997) 56 Cal.App.4th 1532, 1547-1549 (Trippet).)
We find no grounds to reverse. As we have discussed, Arabia testified that the amount of marijuana defendant possessed—336.68 grams, or approximately 12 ounces—far exceeded the amount that would be possessed for personal use. We see no basis for the jury to conclude—and no reasonable probability it would have concluded—that 11 of those ounces were for defendant’s personal medical use, while he was transporting only the remaining ounce for illegal purposes.
See Trippet, supra, 56 Cal.App.4th at p. 1547, fn. 10.
Moreover, as the Attorney General points out, section 11360, subdivision (b) does not apply to a defendant who sells marijuana. The evidence that defendant sold marijuana—including Carter’s testimony and statements, the presence of a large quantity of marijuana in the trunk of the car, and the presence of the scales—was strong. It is not reasonably probable the jury would have concluded defendant only transported or furnished marijuana, rather than selling or possessing it for sale, if it had been instructed differently.
III DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.