Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F09452
BLEASE, J.
Defendant Scott Harrison Usher appeals from the judgment of conviction after a jury found him guilty as charged of possession of marijuana for the purpose of sale (Health & Saf. Code, § 11359; count 1) and transportation of marijuana. (Health & Saf. Code, § 11360, subd. (a); count 2.) He entered a plea of nolo contendere for displaying an altered license tab with intent to avoid vehicle registration requirements (Veh. Code, § 4462.5; count 3) and driving a motor vehicle with a suspended or revoked license. (Veh. Code, § 14601.1, subd. (a); count 4.) The trial court placed him on five years probation after it imposed and suspended execution of a two-year prison term on count 2, a stayed 16-month prison term on count 1, and as conditions of probation, confinement in the county jail for five days on count three to run concurrently with 180 days on count 4.
On appeal, defendant contends the trial court erred by admitting evidence of uncharged acts and by improperly answering a jury question relating to that evidence. He also argues that counsel was ineffective for failing to object to the trial court’s proposed answer, and that he was prejudiced by the prosecutor’s closing argument and the court’s instructions to the jury.
We shall affirm the judgment.
FACTUAL BACKGROUND
A. The Charged Offense
On October 23, 2005, at approximately 9:43 p.m., Sacramento Police Officer Helen Mortlock was driving on Franklin Boulevard near 47th Avenue in Sacramento when she noticed a blue Chrysler with a broken rear tail-light proceeding in front of her. After running a check, she learned the vehicle had an expired registration and made a traffic stop. She contacted defendant, who was the sole occupant, and asked him to exit the vehicle because she smelled marijuana as she approached the Chrysler.
Defendant provided the officer with a suspended driver’s license and told her the sticker affixed to the windshield was fake. Officer Mortlock searched him and found three rolls of currency in one of his pant pockets totaling $1,200 and an additional $224 in currency in the other pocket. Under the driver’s seat the officer found a clear plastic baggie containing 11.04 grams of marijuana and a box of zip lock baggies. The box was a 180-count bag size but only about half that number of baggies were in the box. Inside the center console of the car were “18 one-and-a-half by one-and-a-quarter small plastic zip lock baggies . . . .” The officer also located two cell phones, one was in the center console, the other one was laying on the driver’s seat.
One roll had ten $10 bills, another roll had twenty $5 bills, and the third roll consisted of a single $100 bill, forty-three $20 bills, and four $10 bills.
Defendant told Officer Mortlock there was “a lot” of marijuana in the car. When Mortlock looked inside the trunk, she found a black Jansport backpack containing two large plastic bags of marijuana. One of the bags held 97 grams of marijuana, the other held 314 grams of marijuana. The combined weight of the marijuana in the backpack was just short of one pound.
Officer Mortlock noticed there were three text messages on one of the cell phones. The first message, from “Jim” asked “[y]ou got any E?”; the second message, from an unknown caller asked “Yo, still no veggies?”; and the third message, from Tima asked “How much for a half ounce?”
B. The Uncharged Offense
At approximately 7:15 a.m. on the morning of June 21, 2005, defendant was sleeping in his Chrysler at Merrit’s Landing in Clarksburg, when Yolo County Deputy Sheriff Lori Olson tapped on the window and woke him up. When he opened the car door, she immediately noticed a strong odor of marijuana coming from the vehicle and asked defendant where the marijuana was. He handed her a small baggie containing a green leafy substance she recognized as marijuana.
Deputy Olson also noticed an Igloo cooler on the front passenger side floorboard of the Chrysler. Inside the cooler were 15 baggies of marijuana, varying in weight from 4 grams to 36.3 grams along with numerous small (“one inch by one inch”) and clear plastic zip lock baggies used for repackaging. Olson also found a scale, a metal grinder, a baggie containing nine tablets of Ecstasy, and a glass smoking pipe. Olson arrested defendant, took him into custody, and during a booking search, found a roll of currency in his pants pocket totaling $655.
C. Expert Testimony
Sacramento Police Detective Ernest Lockwood testified as an expert witness. According to Lockwood, a street dealer who sells marijuana typically sells it in small quantities ranging from one-half gram to one gram, which is generally packaged in small plastic zip lock sandwich baggies. Marijuana users typically smoke between one-half to one gram of marijuana per day and generally purchase those amounts for $10 to $20. The chemical in marijuana that produces the euphoric effect decreases over time beginning from the time the plant is harvested, and breaking a large amount of marijuana into smaller quantities is strongly suggestive of possessing the marijuana for the purpose of sale.
Detective Lockwood opined that defendant possessed the marijuana for the purpose of sale. He based his opinion on the total amount of marijuana found, which was a large amount to possess for personal use only, the presence of clear plastic sandwich bags commonly used to sell useable amounts of marijuana, and the text messages, including the one that asked “[h]ow much for a half ounce,” a very common quantity to purchase, and the one making reference to “veggies,” a term commonly used for marijuana. He also considered the large sum of cash and the manner in which it was rolled and organized to facilitate a cash-only-business.
The street value of one pound of “decent grade” marijuana is about $3,000.
Detective Lockwood further testified that the facts underlying defendant’s arrest on June 21, 2005, strengthened his opinion that defendant possessed the marijuana on October 23, 2005, for the purpose of sale because on June 21st, he had a digital scale for dividing the marijuana into individual saleable quantities and the majority of the bags seized contained 14 grams, which is approximately one-half ounce. The presence of a pipe for smoking marijuana was not inconsistent with possession for sale because it is not uncommon for drug dealers to use the same drug they are selling.
D. Defense
Defendant testified in his own behalf and called one witness. He worked for Costco for nine years as a stand-up forklift driver but after a while, his back began to hurt and his legs started to go numb. In November 2004, he went to see Dr. Sehramm, a chiropractor, who diagnosed him with sciatica and recommended a treatment program for him consisting of spinal manipulation, ultrasound, muscle stimulation, and heat.
Defendant stopped going to work because his back was hurting. As a result, he lost his job in June 2005 and began living in his car. He cashed out his 401(k) retirement account and in September 2005, received about $14,000 after taxes.
Defendant admitted that he used marijuana but denied selling it. He had a medicinal marijuana card that allowed him to buy marijuana at a co-op and while he knew he was not authorized to possess more than eight ounces of the drug, he bought a pound of marijuana because it cost less to buy it in bulk.
DISCUSSION
I.
Prior Uncharged Offense
Defendant contends his conviction for possessing marijuana for the purpose of sale must be reversed. He argues that the admission of evidence of his arrest on June 21, 2005, for that same offense was so prejudicial that it violated his state and federal due process right to a fair trial. Conceding the evidence was relevant to prove his intent to sell marijuana, he argues it was prejudicial error to admit the evidence, which in his view was cumulative, time consuming and inflammatory.
Respondent contends the trial court properly admitted the evidence and that any error was harmless. We find no abuse of discretion in admitting the evidence.
A. Procedural Background
Prior to the start of trial, the prosecution moved in limine to admit evidence of defendant’s arrest on June 21, 2005, under Evidence Code section 1101, subdivision (b). Defense counsel argued that the evidence would deny defendant a fair trial because he had not yet been found guilty of the prior offense. The trial court ruled the evidence admissible after finding it was relevant on the question of intent to sell. It was also relevant to rebut the defense that defendant did not have the intent to sell the marijuana and that his possession of $1,400 in currency was part of the cash payment from his 401(k) account that he received just prior to his arrest.
B. Analysis
It is well established that evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, is inadmissible to prove the conduct of that person on a specified occasion. (Evid. Code, § 1101, subd. (b).) The exception to this rule is also well established. Evidence of uncharged misconduct is admissible when relevant to prove some fact such as intent, plan, identity, motive, or knowledge. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500.)
Admissibility depends upon three basic factors: (1) the materiality of the fact sought to be proved or disproved, (2) the relevancy of the uncharged misconduct to prove or disprove the material fact, and (3) the existence of any rule or policy requiring exclusion of the evidence. (People v. Tapia (1994) 25 Cal.App.4th 984, 1021.) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e. criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
A conviction for possession of marijuana for the purpose of sale requires proof the defendant had the specific intent to sell the drug (People v. Harris (2000) 83 Cal.App.4th 371, 374) and that intent may be proved circumstantially. (Ibid.) Defendant concedes that evidence of his June 21, 2005, arrest was relevant to prove his intent to sell the marijuana.
Nevertheless, he argues the evidence should have been excluded under Evidence Code section 352. That section authorizes exclusion of such evidence if its probative value is “substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We disagree.
The prejudice referred to in Evidence Code section 352 is not synonymous with “damaging” evidence. (People v. Yu (1983) 143 Cal.App.3d 358, 377.) Rather, it is “evidence that uniquely tends to evoke an emotional bias” against the defendant, while having only slight probative value with regard to the issue in dispute. (People v. Scheid (1997) 16 Cal.4th 1, 19.) Evidence is “substantially more prejudicial than probative [citation] [only] if . . . it poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.)
On appeal, we review the trial court’s rulings under Evidence Code section 352 for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) A court abuses its discretion when its ruling “falls outside the bounds of reason.” (People v. De Santis (1992) 2 Cal.4th 1198, 1226.) Applying this standard, we find the trial court’s determination that the proffered evidence was more probative than prejudicial was not unreasonable.
Although defendant concedes the evidence is relevant to prove intent, we must assess the relative strength of its probative value and having done so, find it is highly probative to prove defendant’s intent to sell marijuana. The evidence of his Yolo County arrest in June showed that he possessed a large amount of marijuana divided and packaged into 15 useable amounts, a large amount of currency, small plastic baggies used for packaging the marijuana to sell, and a digital scale used to weigh the marijuana in order to accurately divide it into useable amounts for sale. The size of the plastic baggies is also particularly revealing because the bags were an unusual size (one inch by one inch), not ones commonly found in grocery stores and kitchens, but appropriate for selling small quantities of marijuana. Since defendant had these same sized baggies on October 23rd, only four months later, a strong inference arises that he was using them for the same purpose, to package the marijuana for sale.
Defendant contends the evidence was prejudicial because evidence of intent to prove the uncharged offense was significantly stronger than it was to prove the charged offense. We disagree. As stated, prejudicial evidence is not synonymous with damaging evidence. (People v. Yu, supra, 143 Cal.App.3d at p. 377.) The strength of the evidence of intent to prove the uncharged offense bears on its probative value (People v. Ramirez (2006) 39 Cal.4th 398, 463-464), which we found was strong.
Moreover, the evidence of defendant’s specific intent to sell the marijuana on October 23rd was neither minimal nor weak as he suggests. To the contrary, even without evidence of the prior uncharged act, a strong inference of intent to sell marijuana on October 23rd may be drawn from the presence of the large amount of the drug found in his trunk (411 grams) as contrasted with the smaller useable amount (11 grams) found conveniently placed beneath the driver’s seat, the large amount of used currency organized into three rolls by denomination for doing a cash-only-business, the large number of small empty zip lock baggies used for packaging marijuana for sale, the three text messages indicating he was selling marijuana and Ecstasy, and the expert testimony concluding that defendant possessed the marijuana for the purpose of sale.
Defendant contends the text messages were not relevant because they were undated and could have been sent four months earlier during the Yolo County events. We disagree. Defendant had two cell phones, despite the fact he had been unemployed for four months, and the three text messages were all on one phone. These facts raise an inference that he used that phone for selling drugs. Moreover, if those messages were stale because he generally failed to delete old messages, in all probability, he would have had a lot more so-called “stale” messages on his cell phone. Thus, because these factors were subject to competing inferences, they went to the weight of the evidence rather than its admissibility.
Taking a different tact, defendant asserts in his reply brief that if the evidence of his intent to commit the charged offense was sufficient to prove the offense, evidence of the uncharged act was cumulative and therefore unnecessary. Again we disagree. The mere fact there was evidence of intent to prove the charged offense does not necessary mean additional evidence of intent would be unnecessarily cumulative where as here, the evidence of intent to prove the charged offense was not dispositive because it was subject to varying interpretations and inferences.
As defendant argued at trial and on appeal that the evidence is open to two interpretations, one points to guilt, the other points to innocence.
We also reject defendant’s assertion the evidence was inflammatory because the facts he points to (the marijuana was separated into individual baggies in saleable quantities and the presence of a scale, a grinder, and a large amount of currency) are merely factors that make the evidence relevant, they are not inflammatory. Moreover, while the evidence of the uncharged offense included a scale and a grinder, evidence of the charged offense showed defendant had almost twice as much marijuana and cash as he did when he committed the prior uncharged offense.
Last, defendant argues the prejudice was increased because the jury was not told he was going to trial on the uncharged offense, thereby increasing the danger it might punish him for the uncharged offense regardless of whether it considered him guilty of the charged offense. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.) While the evidence does not show he was charged or convicted of that offense, defense counsel told the jury in his closing argument, “[d]on’t judge him on the Yolo case. That trial’s coming up April 30th. You’re not concerned with that.” Moreover, this circumstance alone is insufficient to require exclusion of the evidence where as here the proffered evidence was highly probative, it was not otherwise prejudicial, and the jury was properly instructed on the limited purpose of the evidence, which we must assume it followed. (People v. Fletcher (1996) 13 Cal.4th 451, 463.) Accordingly, we find no abuse of discretion.
II.
The Trial Court Properly Answered the Jury’s Question
Defendant contends the trial court’s improper response to the jury’s question relating to evidence of the uncharged crime was prejudicial because it only added to the jury’s confusion and allowed the jury to convict him based solely upon evidence of the uncharged offense. He further argues that counsel’s failure to object to the court’s answer constitutes ineffective assistance of counsel.
Respondent counters that counsel’s failure to object forfeited this claim for appellate review and that the trial court’s response to the jury’s question was harmless even if deficient.
During jury deliberations, the jury sent a note to the trial court asking four questions. The third question was “[s]hould equal weight be placed on the Sac and Yolo evidence.” The trial court responded the following day upon stipulation of counsel, giving the following answer to that question: “[t]he weight to be placed on any evidence or testimony is for the jury to decide.”
The other questions asked (1) the meaning of the word “intent,” (2) the time frame of the text messages, and (3) “to see the medical form.”
Defendant contends this response was erroneous particularly because the trial court failed to refer the jury back to CALCRIM No. 375 (limiting the purpose of a prior uncharged offense) or otherwise reiterate the limited purpose of the evidence. He argues the trial court had a duty to ensure that the jury understood the purpose of the uncharged act and its failure to do so allowed the jury to use evidence of that act for virtually any purpose, including propensity evidence or as the factual basis for the conviction. We disagree.
We agree with respondent that defendant forfeited this claim by stipulating to the trial court’s answer (People v. Bohana (2000) 84 Cal.App.4th 360, 372-373), which effectively approved the court’s actions and cured any possible technical error. (People v. Roldan (2005) 35 Cal.4th 646, 729.) However, because he has raised a claim of ineffective assistance of counsel, we shall address the merits and find no prejudicial error. Because we find no prejudice, we also reject his claim that counsel was ineffective for stipulating to the trial court’s answer. (Strickland v. Washington (1984) 466 U.S. 668, 692, 694, [80 L.Ed.2d. 674, 696, 698].)
The jury phrased its question in terms of the “weight to be placed” on the evidence and the trial court answered that question in the terms used by the jury. Defendant cites no authority to support his claim that the trial court’s response was a legally incorrect response and we cannot find any because it is well established that while the admissibility of evidence is a question of law for the trial court to determine (Evid. Code § 400 et seq.), once admitted, it is the exclusive province of the jury to determine the truth of a fact (People v. Langley (1974) 41 Cal.App.3d 339, 347) and that determination necessarily includes an assessment and assignment of the weight and value of the evidence.
This principle is consistent with the well established rule that it is beyond the province of an appellate court to reweigh the evidence (People v. Vann (1974) 12 Cal.3d 220, 225; People v. Culver (1973) 10 Cal.3d 542, 548) because it is the exclusive province of the trier of fact “‘“to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends."'" (People v. Ontiveros (1975) 46 Cal.App.3d 110, 117, italics omitted; see also People v. Thornton (1974) 11 Cal.3d 738, 754.)
Moreover, the trial court’s response was not misleading because it had previously instructed the jury in accordance with CALCRIM No. 375. That instruction informed the jury about the procedure for considering evidence of the uncharged offense, the burden of proving that evidence (by a preponderance of the evidence), and the limited purpose for which it may be considered (to prove intent to sell or to prove a plan or scheme to commit the charged offense). The instruction concludes as follows: “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 the defendant committed the acts, 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 possession of marijuana for sale. The People must still prove each element of the charge beyond a reasonable doubt.” (Italics added.) The trial court also gave the jury an instruction on circumstantial evidence, which advised that “before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.”
Stated in full, the instruction advised that “[b]efore you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.”
Given these instructions, we fail to see how the trial court’s answer allowed the jury to consider the evidence of the uncharged act as the underlying factual basis for the charged offense. This is particularly true given the prosecution’s argument that the charged offense was based upon the October 23rd incident while the evidence of the June 21st incident was to be considered for the limited purpose of proving defendant’s intent to sell the marijuana. He further stated, “as the judge told you, you can’t consider it just to find the defendant guilty.”
Even if we assume the trial court’s answer was not as helpful as it could have been, neither was it erroneous or prejudicial. Therefore, because, as we found in Part I, the evidence of the uncharged act was properly admitted, the jury was properly instructed on the limited purpose of that evidence, and both the prosecutor and defense counsel informed the jury that the uncharged offense was not to be considered as the basis for the charged offense, it is not reasonably probable the trial court’s answer to the jury’s question resulted in any prejudice.
III.
The Prosecutor’s References To And The Trial Court’s Instruction Regarding The Eight Ounce Limit Set Forth In Section 11362.77 Were Harmless
After this matter was fully briefed and the time for requesting oral argument had passed, the Second District filed its decision in People v. Kelly (2008) 163 Cal.App.4th 124 (Kelly), which held that Health and Safety Code section 11362.77 -- which caps the amount of marijuana a patient may have at eight ounces of dried marijuana and six mature or 12 immature marijuana plants, unless the patient has a doctor’s recommendation that the specified quantity does not meet the patient’s needs -- unconstitutionally amended the Compassionate Use Act. Defendant sought leave to file a supplemental brief based on that decision, and we granted the request.
This court also held that section 11362.77’s “numerical limits are an unconstitutional amendment to the Compassionate Use Act.” (People v. Phomphakdy (July 31, 2008, C056881) Cal.App. LEXIS 1177, p. 2.) The Compassionate Use Act “provides an affirmative defense to the crimes of possessing marijuana (§ 11357) and cultivating marijuana (§ 11358) for physician-approved personal medical purposes. (§ 11362.5, subd. (d).)” (People v. Wright (2006) 40 Cal.4th 81, 84 (Wright).) Section 11362.765 extends the protections of the Compassionate Use Act to additional crimes related to marijuana. As relevant here, that section provides: “(a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under [s]ection . . . 11359 [possession for sale], 11360 [transportation] . . . . [¶] (b) Subdivision (a) shall apply to all of the following: [¶] (1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use.”
In his supplemental brief, defendant contends his convictions for possession of marijuana for the purpose of sale and transportation of marijuana must be reversed because the prosecutor referred to the eight ounce limit during his closing argument, and the trial court referenced the eight ounce limit in instructing the jury. We find the errors, if any, are harmless.
Contrary to defendant’s assertion, the prosecutor did not argue “that simply because [defendant] had more [marijuana] than the law allowed, he must have been selling it.” In support of his assertion defendant possessed the marijuana with the intent to sell, the prosecutor cited, among other things, the “shear amount” of marijuana defendant possessed. During rebuttal, the prosecutor explained that the Compassionate Use Act “is not a defense to possess[ion] for sale if you find he intended to sell it.” Should the jury “consider some sort of medicinal defense,” the prosecutor asserted that “nothing about the circumstances of this put the defendant within that defense. [¶] First of all, he’s over the amount prescribed. He knows about it. He told us that. He’s got almost twice the amount.”
In Kelly, the court found “the prosecutor improperly argued that eight ounces -- but no more -- was ‘reasonable’ in the absence of a doctor’s recommendation, which [the] defendant did not have.” (163 Cal.App.4th at p. 137.) The court concluded the error was prejudicial because it could not “conclude that the jury found [the] defendant guilty [of possessing more than 28.5 grams of marijuana and cultivating marijuana] because they believed the amount of marijuana he possessed and cultivated was not reasonably related to his medical needs, as opposed to believing [the] defendant was guilty because he had more marijuana than section 11362.77 says he may have.” (Ibid.)
No such problem exists here. Unlike the defendant in Kelly, defendant was convicted of possession of marijuana with intent to sell. In concluding defendant possessed the marijuana with the intent to sell it, the jury necessarily rejected defendant’s claim that he possessed the marijuana purely for personal use -- medical or otherwise. As respondent points out, “[t]he court’s reference to Health and Safety Code section 11362.77, as well as the prosecutor’s argument alluding to it, were ultimately of no import because the jury found that, no matter how much marijuana [defendant] possessed and what his stated purpose for having that amount was, he possessed it for the purpose of sales, which is not protected by the [Compassionate Use Act]. (See People v. Wright (2006) 40 Cal.4th 81, 98-99).”
In Wright, the defendant argued the trial court erred in failing to instruct the jury on the Compassionate Use Act defense in relation to the charged offense of transporting marijuana. (40 Cal.4th at pp. 84-85.) The court agreed, but found the error harmless under any standard of prejudice. (Id. at p. 99.) In doing so, the court reasoned that “the jury necessarily rejected the factual predicate of the omitted [Compassionate Use Act] defense -- that defendant possessed and, by extension, transported marijuana for his personal medicinal use -- when, under other, properly given instructions, it found that he possessed the drug with the specific intent to sell it. . . . Under the instructions it was given, the jury had the option of convicting defendant for simple possession had it been convinced by his claim that the marijuana found in his possession was for his personal medicinal use. Instead, it found beyond a reasonable doubt that he possessed the drug with the specific intent to sell it. Accordingly, ‘the jury necessarily resolved, although in a different setting, the same factual question that would have been presented by the missing instruction’ [citation], in a manner adverse to defendant.” (Ibid.)
This case presents a similar scenario. As in Wright, the jury had the option of convicting defendant of simple possession had it been convinced by his claim that the marijuana found in his possession was for his personal medicinal use. Instead, it found beyond a reasonable doubt that he possessed the marijuana with the specific intent to sell it. Having rejected defendant’s claim that he possessed the marijuana solely for his personal medical needs, the prosecutor and the trial court’s references to the eight ounce limit were of no consequence and the errors were harmless under any standard.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., ROBIE, J.
The trial court instructed the jury in pertinent part as follows: “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 when a physician has recommended or approved such use. [¶] The amount of marijuana possessed or transported must be reasonably related to the patient’s current medical needs. [¶] In deciding if the marijuana was transported for medical purposes also consider whether the method, timing and distance of the transportation were reasonably related to the patient’s current medical needs. [¶] . . . [¶] In [s]ection 11362.77 the quantity of marijuana which qualified . . . patients may possess is as follows: [¶] A qualified patient may possess no more than eight ounces of dried marijuana. If a qualified patient has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient may possess an amount of marijuana consistent with the patient’s needs.”