Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA075300, Deanne Smith Myers, Judge. Affirmed.
Laura S. Kelly, 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, Senior Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant Cornelius Pearson guilty of possession of marijuana for sale (Health & Saf. Code, § 11359). Defendant admitted a prior conviction under the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and two prior prison terms (Pen Code, § 667.5, subd. (b)). He was sentenced to the low term of 16 months, doubled to two years eight months as a result of the prior strike conviction.
In this timely appeal, defendant contends the admission of evidence he was unemployed violated state evidentiary law as well as his right to due process and equal protection under the federal constitution. We conclude reversal is not required, because any error was not prejudicial. Accordingly, we affirm the judgment.
STATEMENT OF FACTS
Prosecution Case
Los Angeles County Sheriff’s Department Deputy Sheriff Alejandro Tiscareno observed defendant exit a train in Long Beach on August 11, 2007. He asked defendant if he had any drugs or illegal weapons. Defendant replied he had a little weed. During a search of defendant, Deputy Tiscareno’s partner found concealed in defendant’s waistband a clear bag containing 16 one-inch by one-inch bags of equal amounts of marijuana, plus one two-inch by two-inch bag containing double the amount of a smaller bag. Nine $5 bills and three $1 bills were found in defendant’s right-front pocket of his shorts with a cell phone. No paraphernalia for ingesting marijuana was found on defendant. The one-inch by one-inch bags were called nickel bags, indicating marijuana contents worth $5. The nine $5 bills indicated nine sales of marijuana. Typically, someone possessing marijuana for personal use would have had possession of some means to light it.
There is no issue regarding the propriety of the stop or the search. The trial court did not permit the prosecution to elicit evidence about why defendant was stopped (he was suspected of engaging in hand-to-hand activity reselling bus fares) or defendant’s parole status (he was on parole).
On cross-examination of Deputy Tiscareno, the defense elicited that defendant was with his minor son and the police found $108.43 on defendant but did not find pay-and-owe sheets, a scale, or a pager. The defense elicited testimony that defendant mumbled but was cooperative with the deputies.
Los Angeles County Sheriff’s Department Senior Criminologist David Hong testified the 17 bags recovered from defendant contained a total of 40.8 grams of marijuana. The 16 smaller bags contained equal amounts of marijuana.
City of Long Beach Police Department Detective Gregory Roberts testified as an expert in narcotics cases. The 40.8 grams of marijuana is more than would typically be possessed by someone who merely used marijuana. If the 40.8 grams had been purchased in gross, without having been divided up into small packages, it would have cost about $40. The manner in which the marijuana was packaged, in 16 nickel bags, indicated the marijuana was possessed for the purpose of sale. The 40.8 grams would yield about 82 doses, the 16 nickel bags could probably be resold for a total of $80, and the dime bag could probably be resold for $10. Not uncommonly, people who possess marijuana for the purpose of sale do not have pay-and-owe sheets on their persons. Sellers of nickel bags do not need to record their sales because they sell for cash. People selling on the street do not usually carry a scale. In Detective Roberts’ opinion, defendant possessed the 40.8 grams of marijuana for sale. “I base my opinion on the quantity of the marijuana, over approximately an ounce and a half of marijuana, that represents a larger amount of doses of marijuana. It’s not typical of someone who’s riding on the train to possess that for personal use. [¶] And also adding to my opinion is the manner in which it’s packaged and possessed with 16 of the one-by-one inch bags with a separate larger bag containing marijuana all possessed within a plastic bag and carried in the waistband. It’s again a little more unusual manner in which to carry drugs for someone who’s just going to be smoking those drugs. [¶] And also adding into my opinion is the money that’s recovered from the defendant, nine [$5] bills is kind of not a real typical number of [$5] bills for someone to have in their possession. It’s a little bit unusual. And also in possession of a cellular telephone. And there’s a complete absence of any user paraphernalia that someone who is smoking marijuana would typically possess.”
Defense Case
Defendant called Deputy Tiscareno to testify that there were surveillance cameras on both ends of the platform where the incident occurred.
DISCUSSION
Evidence Defendant was Unemployed
A. The Evidence, Defendant’s Objections, and Argument
The prosecutor asked Deputy Tiscareno if he recalled whether or not defendant was employed. Defendant objected on the ground of relevancy. The trial court overruled the objection, and Deputy Tiscareno testified that defendant said he was unemployed but was a laborer and just worked side jobs.
After Detective Roberts gave his opinion that defendant possessed the 40.8 grams of marijuana for sale, the prosecutor asked Detective Roberts, “Did the fact that the defendant is reported as being unemployed, did that have any significance in your opinion?” Counsel objected on the ground the question misstated the evidence, and the objection was overruled. Detective Roberts answered: “I consider those types of facts. I look at the overall case, the circumstances of the arrest, and then I look at some of the personal factors where the defendant lives and as it relates to where he’s encountered by the deputies and then also that he is unemployed, and yet he has cash money and a cell phone.” It is “very unusual” for someone who just smokes marijuana to possess so many nickel bags.
In a brief, isolated remark in the course of a long argument to the jury, the prosecutor observed: “Now, we also know . . . that [defendant] was a laborer, however, he also said that he was unemployed. Another inference, another fact you can use to draw your inferences, to draw your conclusion.”
In addition, the prosecution argued to the jury that, with the evidence defendant had nine $5 bills plus 16 nickel bags, “how can you arrive at any other conclusion other than he possessed it for sales.” Moreover, defendant did not have in his possession any paraphernalia for using the marijuana. “[I]t is very uncommon not only for someone to carry 16 baggies and one large bag for personal use, but it is equally uncommon for that person to possess it for personal use and not to have any paraphernalia with which to ingest it.” It was also very uncommon to have that much for personal use.
Defendant did not testify. Nevertheless, the defense theory of the case was that defendant acknowledged the baggies and money belonged to him, but there was no evidence defendant intended to sell the marijuana.
Defense counsel argued to the jury that marijuana smokers do not necessarily carry paraphernalia. Defendant had a total of $108.41 on him, not just nine $5 bills. There was no evidence of sales. Defendant had simply bought two weeks to a month’s supply of marijuana for himself. It makes no sense for defendant to be selling marijuana while he had his son with him in a public place. The fact he possessed bags packaged for sale does not mean he possessed them for sale, because it could also be that he was the buyer. There was no photographic evidence presented from the video camera that he was selling marijuana. There was no proof he did not have traces of cannabis in his blood stream. The fact he was mumbling when he spoke to the police indicates he had been smoking marijuana.
B. Harmless Error
Defendant contends admission of the evidence he was unemployed violated California case law authority that evidence of a defendant’s poverty to prove motive to commit robbery generally is inadmissible, because it is more prejudicial than probative. He contends the error violated his right to due process and equal protection under the federal constitutional. We need not decide whether the evidence was properly admitted over defendant’s relevancy objection, as its admission was not prejudicial.
He argues this principal should apply to the use of a defendant’s poverty to prove motive to sell drugs.
The applicable standard of prejudice is the standard under People v. Watson (Watson) (1956) 46 Cal.2d 818, 836 for violations of state law: is it “reasonably probable that a result more favorable to defendant would have been reached in the absence of the error[?]” (People v. Carrillo (2004) 119 Cal.App.4th 94, 103-104 (Carrillo) [the erroneous admission of evidence of poverty to prove motive is reviewed under the Watson standard, not under the federal constitutional standard of harmless beyond a reasonable doubt].) Defendant does not show the evidence prevented a fair trial so as to constitute a denial of due process. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) He makes no argument and cites no authority that the Equal Protection Clause of the federal constitution was violated. Carrillo, supra, 119 Cal.App.4th at page 102, which defendant cites, did not decide whether admission of evidence of a defendant’s poverty violated the Equal Protection Clause of the federal constitution. Indeed, in Carrillo, the Court of Appeal applied the Watson, not the Chapman, standard of harmless error. (Carrillo, supra, 119 Cal.App.4th at pp. 103-104.)
Chapman v. California (Chapman) (1967) 386 U.S. 18, 24.
The case against defendant for possession of marijuana for sale, apart from the evidence he was unemployed, was extremely strong. Defendant was found with 16 nickel bags and one dime bag of marijuana, and nine $5 bills, but no paraphernalia for personal use. Uncontradicted expert testimony established the quantity of marijuana he possessed would yield 82 doses, more than the amount typically possessed by someone riding on a train who intended the marijuana for personal use. Deputy Tiscareno and Detective Roberts testified that someone in possession for personal use would also have had possession of some means of consumption of the drug. The nine $5 bills found in defendant’s front pocket of his shorts indicate nine prior $5 sales. The 16 nickel bags in his waistband indicate a purpose of resale. Defendant countered this evidence of possession for sale only with argument.
The evidence of defendant’s unemployment played an insignificant role in the trial. Detective Roberts testified that defendant’s unemployment was one of many circumstances that factored into his conclusion. The brief reference in the prosecutor’s argument to defendant’s unemployment status was not a particularly powerful point. Not only was the reference fleeting, but its significance was ambiguous: the prosecutor did not suggest any particular inference that the jury should draw. We conclude there was no reasonable probability that defendant would have achieved a more favorable result had the evidence been excluded.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J. MOSK, J.