Opinion
H041470
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCUS CHRISTOPHER RAY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. B1365215, C1355104)
In consolidated cases, a jury convicted defendant of driving with a suspended license and transporting marijuana, and of two months later offering to sell marijuana and cocaine to an undercover police officer. On appeal, defendant challenges only the two marijuana-related convictions. We will accept the Attorney General's concession that the transportation conviction related to the earlier traffic stop must be reversed in light of an amendment to the governing statute enacted during the pendency of this appeal, and we will remand the matter to the trial court for further proceedings. As to the offering marijuana for sale conviction, we will reject defendant's sufficiency of the evidence challenge to the proof of his intent to sell.
I. BACKGROUND
A. CASE NO. C1355104
Defendant was stopped by a City of Santa Clara police officer in January 2013 for driving a car without a front license plate. Defendant told the officer his driver's license was suspended, and he produced a De Anza College student identification. Defendant was with his girlfriend, and the car belonged to her parents. The officer smelled marijuana, and obtained defendant's permission to search the vehicle. Defendant told the officer there was some marijuana, a marijuana pipe, and some cash in the car. The officer found three baggies containing marijuana in the center console, and a digital scale and cash in the dashboard console. Another scale and a baggie containing 27.4 grams of ground marijuana was found in defendant's jacket on the driver's seat. Forty-five grams of marijuana was found in a bag behind the driver's seat (seven small baggies of marijuana atop loose marijuana), and $840 cash was found in a man's coat in the trunk. The search also yielded four cell phones and two glass smoking pipes.
B. CASE NO. B1365215
In March 2013, an undercover narcotics detective with the City of Mountain View Police Department viewed two postings on Craigslist offering medical marijuana for sale in the Mountain View area, both providing the same contact number bearing a (650) area code. One posting stated "i got some 215 meds available very very high quality beautiful buds," and "im asking 30 an eighth 60 a quarter 100 a half." The other posting offered "extra greenhouse medical marijuana" to "pre verified," "current prop 215 patient[s]." Detective Fisher texted the number asking for either a quarter or half ounce of marijuana, and the seller provided prices for both. Detective Fisher then asked for "white gurl" (which he understood to be cocaine) or "molly" (which he understood to be MDMA), and the seller texted him an (831) number to contact. Detective Fisher texted the (831) number and received a call back from that number. The caller said he had "connects" and they discussed Detective Fisher purchasing an "eight ball" (which he understood to be an eighth ounce of cocaine) for $150 to $175, and a half ounce of marijuana for $100.
After the phone call, the caller texted Detective Fisher from the (831) number with instructions to meet at a parking garage elevator at De Anza College. The caller asked Detective Fisher if he had "prop 215 paper" which the detective understood to be a valid medical marijuana recommendation, and Detective Fisher responded "it's expired gta go get a new 1." The seller responded, "its kew just send me a pic of it and a pic of ur photo id and then text or call when your close." The detective replied that he would not send pictures but would show his paperwork when they met, and the seller texted "ok." A little later the seller texted "lil less than [a] ball so 140 cool so 240," which the detective understood to mean the seller has a little less than the requested amount of cocaine so he was reducing the price for the cocaine to $140, for a total of $240 to include the marijuana.
Detective Fisher texted the (831) number with location updates as he drove from Mountain View to De Anza College, and received return texts with directions to the garage from the freeway. He arrived at the parking garage and observed defendant by the elevator for about five minutes before approaching him. He recognized defendant from the booking photo taken in January, and defendant's voice was the same voice he had heard and spoken with earlier. The detective did not engage in any drug transaction. Instead, defendant was detained and searched. A cell phone and a baggie containing 16.5 grams of marijuana was retrieved from defendant's jacket pockets. Two cell phones, about eight grams of marijuana, and a valid medical marijuana recommendation were found in his backpack. The cell phones were locked, preventing Detective Fisher from accessing any text messages or identifying the phone numbers, and he did not seek a search warrant to obtain that information. No cocaine was found at the scene, but .17 grams of cocaine base was later found between the cover and the battery of one of the phones.
C. TRIAL COURT PROCEEDINGS
A consolidated information charged defendant with possessing marijuana for sale (Health & Saf. Code, § 11359; count 1), transporting marijuana (Health & Saf. Code, § 11360, subd. (a); count 2), and misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a); count 3), arising from the January vehicle stop. He was also charged with offering to sell cocaine (Health & Saf. Code, § 11352, subd. (a); count 4), and offering to sell marijuana (Health & Saf. Code, § 11360, subd. (a); count 5), arising from the arrest at De Anza College.
Defendant testified at trial that he was a medical marijuana user suffering from post-traumatic stress disorder; he consumed an eighth ounce of marijuana daily to help him relax and sleep; when he was stopped in January he and his girlfriend had been living out of their car for a couple of weeks; the marijuana seized at that time was for personal use; and some of the seized cash was his student financial aid. He produced records showing financial aid received in 2012 and 2013, and his girlfriend testified that the marijuana in the car was for personal use. Defendant denied posting the Craigslist advertisements viewed by Detective Fisher, texting or having any phone conversations with Detective Fisher, having a phone conversation in March 2013 with anyone regarding marijuana sales, and having any phone numbers with (650) or (831) area codes. He testified that the marijuana on his person at De Anza College was for his personal use, his medical marijuana recommendation was in his wallet, and the backpack containing marijuana belonged to someone else.
The jury convicted defendant of counts 2, 3, 4, and 5. A mistrial was declared on count 1 (possessing marijuana for sale in January) after the jury deadlocked seven to five. (The direction of the jury's split is unclear from the record.) Imposition of sentence was suspended, and defendant was placed on three years' formal probation including the condition that he serve nine months in county jail. Count 1 was dismissed on the prosecution's motion, in the interest of justice.
II. DISCUSSION
A. COUNT 5 (OFFERING TO SELL MARIJUANA)
The elements of offering to sell marijuana are (1) an offer to sell marijuana (2) made with the intent to sell the marijuana. (People v. Jackson (1963) 59 Cal.2d 468, 469-470; CALCRIM No. 2351.) "The proscribed act is the making of the offer. ... [T]he offense is complete when an offer is made with the accompanying requisite intent; neither delivery of the drug, an exchange of money, nor a direct, unequivocal act toward a sale are necessary elements of the offense." (People v. Encerti (1982) 130 Cal.App.3d 791, 800-801.)
In reviewing a sufficiency of the evidence claim, we determine whether, in a light most favorable to the judgment, the trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) Here, substantial evidence in the record supports the finding that defendant made an offer to sell marijuana with the requisite intent to sell, albeit to a medical marijuana user, which is not authorized under California's Medical Marijuana Program Act. (Health & Saf. Code, § 11362.765, subds. (a), (b)(1) [a qualified medical marijuana patient may transport or process cannabis for his or her own personal use under California law, but is not authorized to cultivate or distribute cannabis for profit].) The text messages and phone conversation with Detective Fisher show that defendant offered to sell the undercover detective a half ounce of marijuana for $100 later that afternoon at De Anza College. The communications show defendant intended to sell marijuana to a medical marijuana user with an expired recommendation. Defendant was present at the agreed-upon location with the agreed-upon amount of marijuana.
No evidence was presented that defendant was offering to sell medical marijuana to Detective Fisher under the rubric of the Medical Marijuana Program. Indeed, defendant denied texting and speaking with the detective and posting the Craigslist advertisements to which the detective responded.
Defendant argues that the evidence was insufficient to establish his intent to sell because the offer was contingent on Detective Fisher producing a medical marijuana recommendation which never happened. Defendant conflates the validity of his offer with the obligation to perform. While producing (expired) medical marijuana documentation may have been a condition of performance, that Detective Fisher failed to produce the documents (or complete the sale for any reason) does not negate the perfected offer to sell to Detective Fisher. Defendant's argument generally that conditions precedent must be satisfied before a valid contract is formed does nothing to inform whether the requisite intent accompanied his offer to sell marijuana to Detective Fisher. The proscribed act is the making of the offer (People v. Encerti, supra, 130 Cal.App.3d at p. 800), and the evidence supports a finding that defendant made an offer to sell marijuana through text messages and his phone conversation with Detective Fisher, and that the offer was made with the intent to consummate a sale.
The Compassionate Use Act of 1996 "ensure[s] that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." (Health & Saf. Code, § 11362.5, subd. (b)(1)(B).) --------
B. COUNT 2 (TRANSPORTING MARIJUANA)
Health and Safety Code section 11360, prohibiting the unlawful transportation of marijuana, was amended effective January 2016. New subdivision (c) provides: "For purposes of this section, 'transport' means to transport for sale." (Stats 2015, ch. 77, § 1, p. 1537.) Defendant argues, and the Attorney General concedes, that the conviction for count 2 should be reversed in light of the amendment. The Attorney General concedes the amendment applies retroactively here because the judgment was not final on the amendment's effective date. (In re Estrada (1965) 63 Cal.2d 740, 744-748; People v. Ramos (2016) 244 Cal.App.4th 99, 102-103 (Ramos).) The Attorney General further concedes that to not apply the new definition of transport would be prejudicial when evaluated under the beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (People v. Merritt (2017) 2 Cal.5th 819, 822 [applying Chapman prejudice standard to instructional error]), given the jury's deadlock on whether defendant possessed for sale the same marijuana he was convicted of transporting. We accept the concession, and will reverse the conviction. On remand the prosecution may elect whether to retry defendant on count 2. (People v. Eagle (2016) 246 Cal.App.4th 275, 280 ["When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand"]; Ramos, at p. 104 [retrial of transportation of controlled substance following amendment to Health & Saf. Code, § 11352 not barred by double jeopardy].)
III. DISPOSITION
The judgment is affirmed in case No. B1365215. The judgment is reversed in case No. C1355104, and the matter is remanded for further proceedings.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Bamattre-Manoukian, J.