Opinion
C082235
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. MELVIN GEORGE HUMPHREY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF143240)
A jury found defendant Melvin George Humphrey guilty of manufacturing concentrated cannabis and possessing marijuana for sale. On appeal, defendant contends he was denied due process by the presentation of false evidence, which was stipulated to by his trial counsel. We will affirm.
BACKGROUND
During a warrant search of defendant's home, officers uncovered large quantities of contraband including over four grams of methamphetamine, garbage-size baggies of marijuana shake (residual clippings from a marijuana plant), and processed marijuana in a tool bag. At trial, the parties would stipulate that 16 pounds of marijuana was found.
The search also uncovered concentrated cannabis. The parties would stipulate that a total of 6.744 pounds of concentrated cannabis was found, weighed, and tested positive for concentrated cannabis. It consisted of 1.4 pounds of concentrated cannabis in hash form, found next to a shotgun, and two tubs of concentrated cannabis in butane honey oil form, found in a freezer (one tub weighed just over three pounds, the other almost two pounds).
A statement filed after trial specified the containers contained 3.4 pounds and 1.944 pounds, respectively. --------
Other evidence found included two digital scales, a pay-owe sheet, over $11,000 in cash, and various incoming and outgoing text messages on defendant's phone: "they call me the weed man," "I git . . . wax too," "wax better than weed itself," "got any good buds," "how much for a half ounce," "Jeremy said weed was not selling back there," "how much weed," "can I front a quarter pretty please."
A jury found defendant guilty of manufacturing concentrated cannabis (Health & Saf. Code, § 11379.6) and possessing marijuana for sale (Health & Saf. Code, § 11359). But it acquitted him of possessing methamphetamine for sale.
At sentencing, the trial court imposed and suspended an aggregate 10-year prison term and ordered four years of formal probation.
Six months after sentencing, in connection with an alleged violation of probation, the prosecution filed a statement in aggravation and in opposition to defendant remaining on probation. In a footnote, the prosecutor explained that after trial, an officer who had testified at trial reviewed the case in preparation for another case filed against defendant (those charges were later dismissed). In reviewing thumbnail photos from the original case, the officer concluded one of the tubs from the freezer, which contained 1.944 pounds of a substance, was not honey oil but cannabis butter, which is used for baking. Subtracting the 1.944 pounds of cannabis butter from the 6.744 pounds stipulated to, defendant possessed 4.8 pounds of concentrated cannabis, which the prosecution characterized as "an extremely large amount."
DISCUSSION
On appeal, defendant contends he was denied due process by the presentation of false evidence. He argues the stipulation as to the 1.944 pounds of concentrated cannabis likely affected the jury's verdict regarding the manufacturing of concentrated cannabis and possessing marijuana for sale counts.
The People respond that the footnote in the prosecutor's statement does not establish the 1.944-pound substance in the tub was not honey oil. The People aver it is unsubstantiated hearsay and at most reflects only the officer's belief. We will assume without deciding that the 1.944 pounds of substance was not concentrated cannabis and conclude any error was not prejudicial.
"When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. This standard is functionally equivalent to the ' "harmless beyond a reasonable doubt" ' standard." (People v. Dickey (2005) 35 Cal.4th 884, 909.)
Here, the presumably erroneous stipulation that 1.944 pounds of substance discovered was honey oil rather than cannabis butter does not require reversal. Nothing indicates the prosecutor knew the tub contained something other than honey oil — indeed defense counsel stipulated to it. And given that 16 pounds of marijuana and 4.8 pounds of concentrated cannabis were indisputably found in defendant's home (along with various indicia of sales) there is no reasonable likelihood an error regarding the 1.944-pound tub affected the outcome.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.