Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 02-7131, 05-7620
DAVIS, J.
In case No. 05-7620, a jury convicted defendant Albert Felix Martinez of possession of marijuana for sale (Health & Saf. Code, § 11359), but acquitted him of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)).
Sentenced to state prison, defendant appeals, contending the trial court prejudicially erred (1) in admitting evidence of defendant’s 2002 statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) and (2) in instructing the jury in the language of CALCRIM No. 360. We will affirm the judgment.
Although defendant filed a notice of appeal in case No. 02-7131, he does not identify any issues on appeal relevant to this action. Therefore, any claim of error with respect to case No. 02-7131 is forfeited. (Cal. Rules of Court, rule 8.204.)
Facts
About 8:40 p.m. on December 13, 2005, West Sacramento Police Officer Daniel Duchene stopped a car being driven by defendant for failure to yield the right-of-way. The officer could smell a strong odor of marijuana coming from the car with the window down, and told defendant about it. Defendant admitted that he had two baggies of marijuana in the center console. Officer Duchene determined that defendant was on searchable probation. He pulled defendant from the car and asked if he would find other marijuana or “anything else illegal” in the car. Defendant admitted there was more marijuana in a black backpack on the back seat.
Officer Duchene found two baggies of marijuana in the center console of the car and three baggies in the backpack. The five baggies contained a total of 177.4 grams of marijuana. In the trunk, the officer found seven turkey baking bags, each measuring approximately one and a half feet by two feet and containing marijuana residue, and two Ziploc baggies. He did not find a pipe or other paraphernalia for ingesting marijuana. The officer also found 2.5 grams of marijuana and $997 in the coin pocket of defendant’s pants. Defendant’s wallet, which was found on the driver’s seat, contained over $1,900. Hidden under the center console, the officer found $200 in five- and ten-dollar bills wrapped with a rubber band.
Defendant initially told Officer Duchene that the money in his pocket came from a busboy job at a restaurant where he earned $1,800 per month. When Officer Duchene informed defendant that he believed defendant was involved in transporting and selling marijuana, defendant stated that he had two other jobs, earning an additional $2,000 per month. He also claimed that he got the cash in the car from playing cards and dice with his friends earlier that evening. He said nothing about the marijuana. He did not tell the officer that he had a T-shirt business.
In the glove box of the car, Duchene found a pay stub from Retail Marketing Solution in defendant’s name showing total year-to-date earnings of $475 as of November 26, 2005, and a medicinal marijuana prescription.
An expert opined that the 179.9 grams of marijuana was possessed for sale based on the amount of marijuana alone. Additional factors included the manner in which it was packaged (including the amount of marijuana in each package) and the denominations of money, which included sixty-seven $20 bills and a number of $50 bills. One package contained 110.2 grams of marijuana, which he valued at $700 to $1,200. Another package contained 27.9 grams, valued at $200 to $400. Three packages, containing between 12 and 13.7 grams, were valued at $80 to $100 each. And the 2.5 grams of marijuana found in defendant’s pocket was valued at $40 to $50. The expert dismissed the notion that an average user would purchase 179.9 grams for personal use, as it would take 50 to 60 days to smoke. The expert also noted that an average user purchasing in quantity to save money would not possess the marijuana in numerous, multiple-sized packages. The expert noted that medical users usually possess marijuana in cellophane bags containing a one-half or one-ounce portion with labels reflecting the doctor’s name and the amount. With respect to the turkey cooking bags, the expert noted that each would usually hold at least a pound of marijuana.
The prosecutor presented evidence underlying defendant’s 2002 conviction for maintaining a place for selling controlled substances (case No. 02-7131). On November 5, 2002, West Sacramento Police Sergeant James Duncan made a U-turn to get behind a car stopped at a stop sign and to read its license plate. The car sped away and the officer followed. The car pulled into the driveway of defendant’s grandmother’s home and the driver and passenger jumped out and ran toward the side yard of the house. The car had been reported as stolen. While Sergeant Duncan and several other officers and their dogs set up a perimeter, defendant came out of the house and gave the officer permission to search defendant’s bedroom. The officer found a large baggie containing a pound of marijuana, a digital scale and sandwich baggies. At the police station, the officer obtained defendant’s statement. Defendant claimed he had been “fronted” the marijuana for sale and that the baggies and scale were used to package the marijuana for sale. Based on the sergeant’s testimony, the People’s expert opined that defendant had possessed the marijuana for sale; the fact that there was no cash found in defendant’s bedroom did not change the expert’s opinion.
Dr. Robert Sullivan, called by the defense, testified that he and another doctor had had a medical marijuana practice for about three years, examined about 75 patients a week, and prescribed medical cannabis. Dr. Sullivan saw defendant on July 16, 2004. Defendant complained of back pain and claimed he worked as a concrete worker. On examination, Dr. Sullivan found tenderness in defendant’s back. Defendant told Dr. Sullivan that he had been taking Vicodin and Soma but complained about the side effects. Defendant stated that he preferred to use marijuana and that he used it twice a week. Dr. Sullivan prescribed one-fourth of an ounce of marijuana per week. Dr. Sullivan counseled defendant not to share his medical cannabis.
On July 15, 2005, Dr. Sullivan examined defendant a second time; defendant again complained of back pain. He stated his occupation was “merchandising.” He claimed he had been taking an antihistamine with codeine. He stated that he used marijuana and had had no legal troubles related to his use. He told Dr. Sullivan that he used a “cheaper variety” of marijuana and used an ounce per week. Dr. Sullivan prescribed one ounce of marijuana per week.
Dr. Sullivan did not check on any of the information defendant provided. Although he had requested defendant’s medical records, Dr. Sullivan did not believe he had ever received them. Dr. Sullivan’s practice did not dispense marijuana. He explained that many patients smoke marijuana in the evenings after work. Another method of use included cooking with it and eating it, which requires three to five times the amount to obtain the same effect.
Defendant testified. In 2005, he lived with his grandmother and worked for his aunt at her restaurant. In 2004 and 2005, he also worked for a merchandising company that set up displays and stocked shelves. His T-shirt business provided another source of money. He used the turkey bags to store new T-shirts. When defendant was stopped by the officer, he had a lot of cash because he had withdrawn $2,000 in various denominations from the bank. He admitted he had money stored in the car, explaining it was for his T-shirt business.
Defendant obtained all the marijuana in the car in the form it was in when he was arrested. He purchased it from a person on the street because the price was less than the price at a cannabis dispensary. Defendant denied possessing the marijuana for sale. He smoked it and cooked with it. He carried the marijuana in the car because his grandparents would not understand his usage. He acknowledged that in 2002 he had kept marijuana in his bedroom in his grandparents’ home. He knew he could possess up to eight ounces for medical purposes.
Defendant denied telling officers that he earned $1,800 a month working as a busboy at his aunt’s restaurant or that he earned $2,000 working at odd jobs. He had withdrawn $2,000 from the bank to purchase Christmas presents. He had bought the marijuana several days prior for $800 or $900.
Defendant possessed the marijuana found in his bedroom in 2002 for his personal use. He used the digital scale to make sure he had been sold the correct amount and to ensure he did not carry more than an ounce on his person. When he was questioned by Sergeant Duncan at defendant’s grandmother’s house, Duncan accused him of stealing the car and refused to accept defendant’s denial, leading to a breakdown in communication. Later, when defendant was questioned at the police station, he claimed the officer coerced his statements, knowing defendant’s grandfather had just returned from the hospital the day before. He admitted that he entered a plea to possession of marijuana, a misdemeanor, and maintaining a place for selling or giving away controlled substances, a felony.
Defendant denied that he possessed the pound of marijuana in 2002 for sale, denied telling the officer at the police station that he had been selling marijuana, and denied telling a probation officer in May 2003 that he had been selling marijuana.
With respect to the marijuana defendant possessed in 2005, a defense cannabis expert, Christopher Conrad, testified that defendant possessed at least three varieties, and that the amount in each bag was consistent with personal use. Conrad, however, found the amount of money in defendant’s possession to be “troubling” and “excessive” but he had spoken to someone in defense counsel’s office prior to trial, who assured him that there were “‘explanations.’” Conrad stated that the packaging was similar to that provided by dispensaries. Conrad explained that the turkey cooking bags are used by growers to contain the smell of marijuana and for delivery to dispensaries. Upon delivery, a dispensary could throw the bags away or give them to the customer.
With respect to the marijuana defendant possessed in 2002, Conrad opined that the one pound was possessed for personal use. With respect to defendant’s admission he was selling, Conrad stated that defendant had not been convicted of selling.
Discussion
I
Defendant contends the trial court erred in allowing the prosecution to introduce in its case-in-chief statements defendant made to Sergeant Duncan during an interview in 2002 in connection with defendant’s prior conviction for maintaining a place for use, sale, or distribution (case No. 02-7131). Duncan testified that defendant admitted that he was selling marijuana. Defendant contends that his statements should have been excluded because they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). We find no error.
Background
Defendant moved in limine to exclude any reference to his prior conviction (case No. 02-7131), arguing the evidence was inadmissible character evidence and would be more prejudicial than probative under Evidence Code section 352. The prosecution sought to introduce the facts and circumstances of defendant’s 2002 conviction, including defendant’s admission that he sold marijuana to make money, in order to show intent under Evidence Code section 1101, subdivision (b).
At the hearing on the motion, the prosecutor added that the evidence underlying the prior and defendant’s admissions went to knowledge, as well as defendant’s specific intent to sell in the present case, and stated that he planned to call Sergeant Duncan, who interrogated defendant in 2002, to testify. The prosecutor suggested that the prejudicial effect was minimal in that defendant would have to testify to explain his medicinal marijuana defense. The court concluded that the evidence was admissible under section 1101 and more probative than prejudicial, granting the prosecutor’s motion.
Prior to the prosecutor’s case-in-chief, defense counsel raised the adequacy of the Miranda warnings and defendant’s waiver of them when he was interviewed in 2002. In lieu of the officer’s testimony concerning the advisement of rights, defense counsel referred to the police report, stating the court “could read [it], it’s not very long . . . .” The prosecutor argued that the Miranda warnings and waiver had no bearing on the current case and that any issue had been waived by defendant’s plea in the prior case. Defense counsel noted that the plea was to possession, not possession for sale.
The court found that the officer adequately advised defendant and that defendant’s waiver was implicit and knowing. The trial court stated: “There’s nothing here that shows there was not an implicit waiver and the officer couldn’t rely on [defendant’s] statements that he was of sufficient intelligence, has sufficient language skills, and was not under the influence and had just been advised he did not need to talk yet. He did talk.”
Analysis
The record on appeal does not include the police officer’s report. In his request to augment the record, the Attorney General has attached a copy of the report. Defense appellate counsel filed no opposition to the motion.
California Rules of Court, rule 8.155 provides, in relevant part, as follows:
“(a) . . . [¶] (1) At any time, on motion of a party or on its own motion, the reviewing court may order the record augmented to include: [¶] (A) Any document filed or lodged in the case in superior court; . . .”
The record on appeal does not reflect the report was “filed or lodged” in the case. Instead, defense counsel read a portion of the report and asked the court to read it in making its ruling. The court referred to the report in making its ruling.
Because the trial court’s ruling to admit defendant’s statements during a custodial interrogation must be based upon the “totality of the circumstances surrounding the interrogation” (Fare v. Michael C. (1979) 442 U.S. 707, 724-725 [61 L.Ed.2d 197]; (People v. Whitson (1998) 17 Cal.4th 229, 247), and the record reflects that the trial court read the report, we grant the Attorney General’s request to augment the record with the copy of the police report. We set forth the relevant portions of the police report in the margin below.
“11-05-02 at approximately 2300 hours I was in a marked West Sacramento Police Department patrol vehicle. . . . While still traveling on Bryte I observed a black Honda Accord approach the intersection of Anna and Bryte. . . . The vehicle was occupied with two young Hispanic males. . . . The passenger was wearing a gray sweatshirt and the driver was dressed in dark clothing from the position I was observing. [¶] . . . The driver began his turn after stopping and I simultaneously made a U turn in behind the vehicle. As I did so the vehicle accelerated rapidly N/B Bryte. . . . [¶] . . . The vehicle continued gaining speed then made an abrupt turn E/B May Street with the vehicle obviously leaning towards the right (north) because of the unsafe speed and improper turning position. . . . [¶] . . . I turned onto May Street and observed the vehicle to [sic] traveling at a high rate of speed on the wrong side of the roadway. . . . [¶] The suspect’s vehicle suddenly braked hard and turned into the driveway of 1411 May Street. I observed both occupants to [sic] open their door and flee into the yard of this residence. Both ran towards the N/E area of the residence. It was extremely dark and I could not see beyond the vehicle parked in the driveway. . . . A check of the vehicle’s license plate (4LDZ028) through SVS revealed it to be reported as a stolen vehicle from the North Sacramento area reference . . . . [¶] Sergeant Brummett supervised the positioning of the officers for the perimeter. An immediate search of the area was done using K-9 Cane (Officer Sockman) and K-9 Areos. The resident of 1412 May Street exited the house and approached me inquiring what I was doing. I observed that the resident matched the physical description of the passenger in the stolen vehicle parked in his driveway. He identified himself as Albert Martinez. Martinez acted in disbelief when I asked if he had been in the vehicle. He then stated I think they ran through my backyard. [¶] I continued the search of the area surrounding the abandoned stolen vehicle without results. . . . [¶] Sergeant Brummett, Officer Sockman, and myself went to the door and knocked at 1412 May Street. Martinez and his grandmother, identified as Lila O’Campo, answered the door. I inquired from Mrs. O’Campo and Martinez if we could enter their residence and check for the suspects who ran from the stolen vehicle. Both graciously approved and Mrs. O’Campo waved us in walking us into the house towards the back. I asked where Martinez’s room was and Mrs. O’Campo pointed it out. I asked Martinez if anyone else was in his room. He replied no. I asked if I could go into his room and look for anyone hiding ‘just to make sure’. Martinez stated, ‘go ahead.’ [¶] . . . I looked behind a chair, and then opened a closet door advising Sergeant Brummett to be on alert. I opened the door and was immediately met by a strong smell of marijuana emitting from the closet. I looked towards the left side of the closet (inside) and observed a large bag of what obviously was marijuana. I estimated the bag to contain at least a pound or more of marijuana. I finished checking the room and walked and met Martinez. I asked him if he knew anything thing [sic] about this[,] holding the bag of marijuana up. He stated ‘no’. [¶] I asked Martinez to step outside where I could speak to him without any distractions. I told him I felt he was being evasive concerning the stolen vehicle dumped in his driveway. I also told him I thought he was probably the passenger whom I observed in the stolen car. Martinez said nothing. I told Martinez he needed to tell me the truth about the car and the marijuana. Again Martinez said nothing. I asked him if there was any more marijuana in his room or weighing scales, Baggies, [etc.]. Martinez said ‘yes[,]’ I have a scale and some sandwich Baggies in my room also. I asked Martinez if he would walk back into the house with me to his room and retrieve the mentioned items and give them to me. Martinez stated ‘yes[,]’ he was not handcuffed, he had not been told he was under arrest, and he was not told he was not free to leave. There were a total of three officers present and none had their weapon out of the holster. While I spoke to Martinez the front door was open and Martinez’s grandmother and girlfriend could hear and see us as we spoke. . . . Once in the room he opened a small stand with drawers. From here he removed a small electronic scale, a box of ‘Best’ sandwich Baggies and another clear plastic zip lock baggie containing a small amount of marijuana. [¶] . . . Once outside near the front of my patrol unit I told Martinez he was under arrest for possession of marijuana for sale. He was handcuffed behind his back, searched, and then placed into the rear seat of my patrol unit. His only reply was ‘that’s not mine.’ While driving to the station Martinez asked several question[s] about the inside of the police unit and me[,] however, [h]e never inquired about the charges he was arrested for or the stolen vehicle being investigated. [¶] Once at the station I brought Martinez into the booking area where he remained handcuffed. I read him the Miranda [w]arnings from the Miranda Warning Card issued by the Yolo County District Attorney for our use. Before reading the warnings I asked Martinez if he was under the influence of drugs or alcohol to which he stated no. I asked him if he was capable of reading and writing in a comprehendible [sic] fashion. He stated yes and further said he considered himself of average to above average intelligence. After reading the warnings I went directly to asking questions without asking for an expressed waiver. [¶] Martinez stated the marijuana was his. He was and does sell marijuana for the purpose of making money. The marijuana located in the house was fronted to him (given on the understanding after selling the marijuana he would pay the dealer the agreed upon price then the leftover money was his). The packing material (sandwich baggies) was for the purpose of packaging the marijuana for sale. The scale was used for weighing each individual portion of marijuana for sale. [¶] Martinez stated he was not going to tell me who gave him the marijuana for sale. When asked about his friends and their names he again refused to provide the names. I asked him if his fingerprint would be found in the stolen vehicle. He stated no his fingerprint was not anywhere on the stolen vehicle, he has never seen that vehicle and, had no reason to touch it. [¶] I asked Martinez if he had any suspicion about who might [have] dumped the vehicle in his driveway. He stated ‘yeah’ but I am not saying anything about it. I told Martinez he should tell me the truth and make every effort to cooperate with law enforcement to show his willingness to be honest. Martinez refused to answer any further question[s]. He did not express this verbally however; he said nothing in reply to my questions. The interview was stopped and Martinez was transported to YCJ. [¶] Martinez was booked into jail for possession of the marijuana for sale (approximately 1 lb.) and maintaining a residence for the purpose of selling contraband.”
A waiver need not be express but instead may be implied from defendant’s actions reflecting he intends to waive his rights. (See Whitson, supra, 17 Cal.4th at p. 250.) A knowing and intelligent waiver may be found even where defendant has not been asked if he understood the rights as explained. (United States v. Rubio (2nd Cir. 1983) 709 F.2d 146, 152-153.)
On appeal, we “accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ‘“give great weight to the considered conclusions” of a lower court that has previously reviewed the same evidence.’ [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 235-236.)
Defendant does not dispute that “‘intent to sell’ was a material fact that had to be proved in the current offense, nor that an admission to selling in the past would have had a tendency to help prove that fact.” He contends on appeal that his statement should have been excluded “at least as to the prosecution’s case in chief” because the officer failed to ask him whether he understood his rights.
We conclude that the trial court properly ruled. Officer Duncan took the handcuffed defendant into the booking area. Defendant answered several questions, revealing he was not under the influence of alcohol or drugs, he could read and write, and he considered himself of average or above average intelligence. The officer read the warnings pursuant to Miranda and then began questioning defendant. The officer did not ask for defendant’s express waiver of his rights. Defendant then proceeded to make damaging admissions, that is, that the marijuana belonged to him and had been “fronted” to him. The packaging materials and scale were used to package the marijuana for sale, and he sold the marijuana to make money. Defendant refused to identify his supplier and his friends. He denied that his fingerprint would be found in the stolen car and denied having ever seen it before. Defendant refused to identify who he thought had left the stolen car in his driveway. When the officer insisted that defendant tell the truth and to cooperate, he refused to answer any additional questions, at which point the officer stopped his questioning and booked defendant into jail for possession of about one pound of marijuana and for maintaining a place for selling marijuana.
The record reflects that defendant was advised of and voluntarily, knowingly, and intelligently waived his rights. The evidence does not demonstrate that defendant was intimidated, coerced or deceived but rather that he voluntarily chose to waive his rights and responded to questions. (See Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410]; Whitson, supra, 17 Cal.4th at p. 247.) In his reply brief, defendant erroneously relies upon his trial testimony in support of his claim that he was coerced. Such testimony was not before the court when it ruled on defendant’s challenge to the admission of his statement. Had it been, the officer would have testified as to his version of events and the trial court would have been called upon to make a credibility determination. On appeal, defendant raises no ineffective assistance of counsel claim for failure to call defendant to testify at the hearing on the admissibility of defendant’s statements to the officer.
After making his damaging admissions about the marijuana, defendant invoked his rights during the interview when the questioning turned to identifying others by refusing to answer any further questions. This demonstrates that he did understand his rights. (People v. Silva (1988) 45 Cal.3d 604, 629.) The trial court did not err in concluding that no Miranda violation occurred.
In view of this conclusion, we need not reach the Attorney General’s other arguments.
II
Defendant challenges for the first time on appeal the trial court’s instruction to the jury concerning statements defendant made to Dr. Sullivan to obtain a prescription for medical marijuana. We reject defendant’s contention.
“Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 927 (Anderson).)
“‘It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” (Anderson, supra, 152 Cal.App.4th at pp. 928-929, quoting People v. Burgener (1986) 41 Cal.3d 505, 538-539, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754.)
Here, the court instructed the jury concerning the limited use of certain evidence, defendant’s statements, and opinion testimony by experts and others. (CALCRIM Nos. 303, 318, 332, 333, 358, 360, 375.)
As given to the jury, these instructions provided:
Defendant focuses on one particular sentence in CALCRIM No. 360. He contends that the instruction told the jurors that they “were not to consider his statements concerning his medical condition as being true, i.e., the statements ‘are not to be used as statements that the information provided is actually true[]’ . . . [t]hus undermining his defense” of possession of medical marijuana for his back pain. He further contends that the instruction was designed to apply to incriminating statements made during a court-ordered psychological examination and had no application here. Defendant also contends that Dr. Sullivan was not a retained expert but instead one of his treating physicians, that defendant’s statements were not incriminating, and that no hearsay objection was posed when Dr. Sullivan related his conversations with defendant concerning his medical condition and need for medicinal marijuana.
Defendant notes that the authority for CALCRIM No. 360 comes from In re Spencer (1965) 63 Cal.2d 400 (Spencer). Spencer held that a court-appointed psychiatrist may examine a defendant without his or her attorney present provided that said psychiatrist testifies at trial only if defendant puts his or her mental state in issue. In that event, an instruction is required to explain to the jury that the defendant’s incriminating statements to said psychiatrist should not be accepted as proof of the truth of the facts disclosed by the defendant, but rather only for the limited purpose of showing the information relied upon by the psychiatrist in reaching his opinion. (Id. at pp. 411-413.) Defendant contends that CALCRIM No. 360 should be given only when necessary to “add safeguards to situations where a defendant is making confidential statements, in a criminal case, without benefit of counsel.”
The Attorney General cites People v. Elliot (2005) 37 Cal.4th 453 (Elliot), which held that CALJIC No. 2.10, the predecessor instruction to CALCRIM No. 360, was properly given in an analogous situation.
In Elliot, a defense expert witness (Dr. William Vicary) testified that in his opinion, the defendant was manic-depressive and had an antisocial personality disorder. The expert based his opinion on various sources, including the defendant’s statements, which the expert recounted without a hearsay objection by the prosecutor. (Elliot, supra, 37 Cal.4th at p. 480.) Prior to cross-examination, the court queried whether it should instruct with CALJIC No. 2.10. The prosecutor requested the instruction; defense counsel objected. At the conclusion of the penalty portion of the trial, the court instructed with CALJIC No. 2.10. On appeal, the defendant argued the instruction removed mitigating facts from the jury’s consideration. (Ibid.) Citing People v. Stanley (1995) 10 Cal.4th 764, the Supreme Court in Elliot noted it had previously concluded otherwise, finding the instruction appropriate except “in rare cases, [where] due process considerations may override state evidentiary rules so as to ‘require admission, at the penalty phase of a capital trial, of a highly relevant and reliable hearsay statement.’” (Elliot, supra, 37 Cal.4th at p. 481.) The court further noted that Stanley had found the statements had no indication of reliability, having been made “‘contemporaneously with the criminal proceedings,’” and not to instruct on the limited purpose of the defendant’s statements “would allow defendants to insulate factual assertions and self-serving testimony from any cross-examination simply by having an expert relate them to the jury. [Citation.]” (Elliot, supra, 37 Cal.4th at p. 481.) Elliot concluded that the instruction was properly requested and given “to clarify that defendant’s statements to Dr. Vicary were to be considered only for the limited purpose of assessing Dr. Vicary’s opinion. [Citations.]” (Ibid.) Elliot also rejected the defendant’s challenge to a lack of a contemporaneous objection on hearsay grounds, finding the request for the limiting instruction “served the same purpose.” (Ibid.) Elliot further concluded that the defendant’s statements were not highly relevant and reliable, noting that his statements were made in preparation for trial and even Dr. Vicary described defendant as a liar. (Id. at p. 482.)
Here, defendant’s statements to Dr. Sullivan, made prior to defendant’s arrest in 2005, were made in order to obtain a prescription for medicinal marijuana. Dr. Sullivan was not a physician appointed to report to the court (Spencer, supra, 63 Cal.2d 400) or to assist defense counsel (Elliott, supra, 37 Cal.4th 453). Dr. Sullivan was arguably not defendant’s treating physician either since he never received any medical records from defendant’s physician, who had supposedly prescribed a medication containing codeine and Soma. Defendant never disclosed to Dr. Sullivan that he had been previously convicted of maintaining a place for sale of marijuana, a felony. Had defendant disclosed his prior conviction, Dr. Sullivan likely would not have written the prescription. Thus, defendant’s statements to Dr. Sullivan lacked any indicia of reliability. Moreover, defendant testified and did not explain his medical need for the marijuana prescription, which would have allowed for cross-examination. Defendant was not entitled to insulate his assertion to Dr. Sullivan that he suffered from back pain that only marijuana relieved. Defendant has no cause for complaint and we reject his contention. The limiting instruction did not deny defendant a fair trial. CALCRIM No. 333 told the jury the same thing about other witnesses who gave their opinions [“You must decide whether information on which the witness relied was true and accurate”].
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J., RAYE, J.
CALCRIM No. 303: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
CALCRIM No. 318: “You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in those earlier statements is true.”
CALCRIM No. 332: “Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion. [¶] If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts’ qualifications.”
CALCRIM No. 333: “Witnesses who were not testifying as experts gave their opinions during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
CALCRIM No. 358: “You have heard evidence that the defendant made . . . oral statements before the trial. You must decide whether or not the defendant made any such statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded.”
CALCRIM No. 360: “Robert Sullivan, M.D., testified that in reaching his conclusions as an expert witness, he considered statements made by Albert Martinez. I am referring only to the statements regarding Mr. Martinez’s health. You may consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements [is] true.”
CALCRIM No. 375: “The People presented evidence that the defendant committed the offense of maintaining a place for the purpose of unlawfully selling, giving away, or using any controlled substance, which was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to sell marijuana in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [p]ossessing [m]arijuana for [s]ale. The People must still prove each element of every charge beyond a reasonable doubt.”