Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Super. Ct. No. FJ43091 Robert J. Totten, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Tonja R. Torres, 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, Michael R. Johnsen and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Minor E.G. appeals from the order of wardship entered following a finding that he possessed marijuana for sale in violation of Health and Safety Code section 11359. (All further statutory references pertain to the Health and Safety Code unless otherwise noted.) The minor contends that insufficient evidence supports this finding and that the trial court erred by refusing his request for appointment of an expert. We affirm.
BACKGROUND
Los Angeles Police Department Officer Jose Lopez testified that on the evening of August 18, 2008, he and his partner stopped minor for riding a bicycle on a sidewalk and without a helmet. (All further date references pertain to 2008; the Welfare and Institutions Code section 602 petition against minor and minor’s testimony indicate the incident occurred on August 19.) Minor got off of his bicycle and “spontaneously said, ‘I just got some weed in this bag.’” Minor was holding a black plastic bag in his hand. The officers opened the bag and saw 41 plastic baggies containing marijuana. The total net weight of marijuana in the baggies was 100.46 grams. The officers detained minor and searched him. In his pockets they found three capped plastic bottles containing marijuana, with a total net weight of 3.30 grams. Minor also had $207, consisting of ten $20 bills, a $5 bill, and two $1 bills. Lopez believed the marijuana in the bottles was of superior quality to that in the baggies because the latter contained stems and seeds. The baggies may have been “nickel” bags that would sell for $5. Minor was not in possession of any smoking paraphernalia or rolling papers, did not have “burnt fingertips” as is common among marijuana smokers, and did not appear to be under the influence of any substance.
At the police station, minor told Lopez that he had an illness, the name of which Lopez could not remember, and a doctor told him he could use marijuana to treat it. Lopez asked to see documentation regarding minor’s medical marijuana use, but minor could not produce anything. Minor said he had a medical marijuana card but “didn’t have it on him.” When asked where he obtained the marijuana, minor “just said on the east side.”
Lopez opined that minor possessed all of the marijuana for the purpose of sale. He based his opinion on the packaging in 41 individual baggies, “the way it was being transported in a dark or black plastic bag,” the “blatant narcotic sales” in the area in which minor was arrested, the absence of any smoking paraphernalia or “burnt fingertips” on minor, and the amount of money minor was carrying. If the contents of the 41 baggies had all been inside a single container, without additional baggies, Lopez’s opinion “probably” would have been different. Lopez’s opinion would also have been different if minor had been in possession of “cigarettes or papers.”
Minor testified that he had “purchased” a medical marijuana card from Dr. Michael Su for $130 or $140 on August 14. Minor suffered from carpal tunnel syndrome and asthma. He lied to the doctor about his age. At the adjudication hearing he introduced a “medical marijuana paper” dated August 14. Minor showed the police officers his medical marijuana card when they stopped him, but they said they did not believe in medical marijuana cards and placed the card back in minor’s wallet. Minor purchased all of the marijuana seized from him on August 19: he bought the marijuana in the pill bottles for $195 at the medical marijuana dispensary and the bag of 41 baggies for $100 from a man who had “an advertising sign” and was standing just outside the dispensary. Minor thought the 41 baggies were “a nice deal” because each baggie was worth $5. He smoked marijuana every day and thought it would take him about two weeks to use the entire quantity he had with him at the time of his arrest. All of the marijuana was for his own personal use. He smoked about half an ounce of marijuana per day and wanted “one big quantity at one time so [he could] just come home from work and have it.” Minor was on his way home from the dispensary when the police stopped him. He had purchased marijuana from the same dispensary once or twice before in August. On one of those prior occasions, the dispensary did not ask him to show his medical marijuana card, and the other time, it did. On those prior occasions when minor was inside the dispensary, he had seen the man from whom he purchased the 41 baggies of marijuana on August 19. When the court asked minor how he had purchased from the dispensary on prior occasions if he had just acquired his medical marijuana card on August 14, minor changed his testimony and said that on the prior occasions he had not actually gone inside the dispensary, but had given money to a friend who purchased marijuana from the dispensary.
Minor had been working at Wendy’s for three or four weeks at the time of his arrest. He started there sometime in July. Although he testified he was paid every other Tuesday, he claimed to have received four or five paychecks by the date of his arrest. Minor introduced as an exhibit a paycheck stub reflecting payment of $201.12 on August 12. That was his last paycheck. Minor had been unemployed for several months before Wendy’s hired him, and he had no other jobs. He spent his wages on marijuana, weightlifting supplies, clothing, snacks, and “other needs.” On the day he was arrested, he started out with $500, all of which came from his job at Wendy’s. On cross-examination, minor testified he always saved $100 from his check to purchase weightlifting supplies and “other needs.” He affirmed that after he received his August 12 paycheck, he paid $130 or $140 for the medical marijuana card. Minor was not sure whether that left him with around $70. He further affirmed that on August 19 he had spent $195 inside the dispensary for the pill bottles of marijuana and $100 outside the dispensary for the 41 bags of marijuana. Minor insisted that all of the money he spent and carried had come from the money he had saved from his Wendy’s wages. He further testified that he smoked about $25 worth of marijuana each day but claimed that other marijuana smokers paid for half of his marijuana.
The juvenile court sustained the Welfare and Institutions Code section 602 petition alleging possession of marijuana for sale, saying that it found “that the minor was carrying 41 baggies for the purpose of sales. Whether it was to support his habit or not, he was selling clearly package [sic] for sales. I think it’s a manipulation of the marijuana, even though he’s not qualified, but I don’t base it on the fact that he manipulated, he got the card when he wasn’t qualified at the time because he was under 18. It just seems like a complete manipulation and working with the medical marijuana, the way he’s described what he’s using it for, but that’s just a personal commentary. [¶] Based upon what I have heard, he was possessing it for sales.” After defense counsel argued that “all we have here is the... individual baggies,” the court interrupted: “And the money. I agree with [the prosecutor] that clearly he must have... had a source of funds from somewhere, other than the job to have this kind of money in his pocket for what he purchased. And clearly he’s purchasing outside the store, at this discounted deal realizing, hey, I can make some money off this in my mind.” The court further noted that it rejected minor’s testimony that the marijuana was intended solely for personal use.
The juvenile court declared minor to be a ward of the court and ordered him suitably placed. The court set the aggregate maximum confinement term at 6 years 8 months, which encompassed a first degree burglary count that minor had previously admitted.
DISCUSSION
1. Sufficiency of evidence
Minor contends that insufficient evidence supports the juvenile court’s finding that he possessed marijuana for sale because Lopez was “unqualified to render an expert opinion in this case.”
We first address Lopez’s expertise. In order to testify as an expert, a witness must have special knowledge, skill, experience, training, or education in the subject area of his proposed testimony. (Evid. Code, § 720, subd. (a).) The key determination regarding the competency of a proposed expert witness is whether “the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and no hard and fast rule can be laid down which would be applicable in every circumstance.” (Brown v. Colm (1974) 11 Cal.3d 639, 645.) Whether a witness qualifies as an expert is a discretionary determination for the trial court. (Id. at pp. 646–647.)
Lopez testified that he received about 40 hours of narcotics training in the police academy, including about an hour devoted just to marijuana. He also attended a five-day narcotics school where a full day was devoted to marijuana, including possession and packaging for sales. Two days of the five-day school pertained to drug users and addicts, including about an hour regarding marijuana users and addicts. His training did not address the quantity of marijuana a daily marijuana user would have to consume to get high. Lopez also had gained practical experience by participating in arrests for possession of marijuana for sale. He did not know if daily users developed a tolerance for marijuana.
Minor objected that Lopez lacked sufficient expertise to testify regarding whether minor possessed the marijuana for sale. The court overruled the objection and permitted Lopez to testify.
On cross-examination Lopez testified that he had made approximately 70 to 80 arrests for possession of marijuana for sale and approximately 150 or more arrests for simple possession of marijuana. He had never had any training regarding medical marijuana or the medical marijuana law. In the course of his formal training, he learned that people who buy drugs in bulk “are the dealers.” Lopez had no idea how long it would take a “heavy marijuana user” to consume the contents of the 41 baggies minor was carrying or whether it would take more of that grade of marijuana “to get a deeper high.”
Lopez’s training and on-the-job experience invested him with special knowledge regarding the possession of marijuana and other controlled substances for the purpose of sale. Although he lacked training—and apparently practical experience and knowledge—regarding the quantities of marijuana typically consumed by daily and medical users, Lopez did not testify regarding these matters. The volume of marijuana minor possessed was not a factor upon which Lopez based his opinion that minor possessed the marijuana for the purpose of sale. His opinion was instead based upon minor’s possession of 41 individually packaged portions inside a dark bag, the cash minor was carrying, his presence in an area known for “blatant narcotic sales,” and the absence of smoking paraphernalia and burnt fingertips. None of these factors depended upon or pertained to expertise regarding chronic or medicinal use of marijuana. Minor had the burden of proof as to his defense under the Compassionate Use Act of 1996 (§ 11362.5). (People v. Mower (2002) 28 Cal.4th 457, 464, 477–478.) The prosecution was not required to call an expert witness who could either assist the minor with his defense or negate its applicability.
Minor relies upon People v. Chakos (2007) 158 Cal.App.4th 357 (Chakos) and People v. Hunt (1971) 4 Cal.3d 231 (Hunt). In Hunt, the California Supreme Court found the expert testimony of a police officer insufficient to support a conviction of possessing methedrine for sale. The officer found Hunt in a bedroom injecting himself with methedrine. At Hunt’s feet was a travel case containing three full and one partially full 30 cubic centimeter vials of methedrine, each of which was labeled with a pharmacy label listing Hunt’s name and a physician’s name. The case also contained disposable syringes and needles. (4 Cal.3d at pp. 233–234.) The parties stipulated that Hunt obtained all of the methedrine in his possession pursuant to a prescription, and Hunt’s physician testified he had prescribed methedrine to Hunt. (Id. at pp. 234–235 & fn. 2.) The officer testified that users of methedrine use up to eight cubic centimeters per day. Based upon the quantity of methedrine Hunt possessed, its value for illegal street sales, and the quantity normally used by an individual, the officer opined that Hunt possessed the methedrine for sale. (Id. at pp. 234–235.) Hunt testified that he used about nine cubic centimeters of methedrine per day, and the vials seized from him constituted his personal supply for about one week. (Id. at p. 235.)
The Supreme Court found the officer’s opinion carried little or no weight because he had insufficient expertise regarding the lawful possession of methedrine for medical use: “As to drugs, which may be purchased by prescription, the officer may have experience with regard to unlawful sales but there is no reason to believe that he will have any substantial experience with the numerous citizens who lawfully purchase the drugs for their own use as medicine for illness. [¶] In the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officer’s opinion that possession of lawfully prescribed drugs is for purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction. No such special circumstances were shown here as to the methedrine in the blue and white travel case. [¶] The officer stated that his opinion that the methedrine was held for sale was based on ‘the quantity involved, the over-all street value, the normal use by an individual.’ Under his own testimony, the use by an individual could be up to 8 ccs. a day. The quantity in the blue and white travel case was less than 120 ccs. and could have been as little as a two-week supply. The street value seems immaterial. The fact that medicine purchased lawfully at reasonable prices may demand a much greater price in the illegal market furnishes no reason to suppose that a possession of a two-week supply of the drug pursuant to prescription is held for profit rather than use.” (Hunt, supra, 4 Cal.3d at pp. 237–238.)
Chakos applied Hunt in the context of the Compassionate Use Act of 1996 (§ 11362.5) and the Medical Marijuana Program (§ 11362.7 et seq.). Police stopped Chakos’s car and found a plastic bag containing seven grams (a little less than one-quarter ounce) of marijuana, a physician’s “medical slip” for marijuana use, and $781 in cash. During a search of Chakos’s home, officers found a little less than six ounces of marijuana, stored in “irregular amounts” “in different storage devices”; a gram scale; a closed circuit camera trained on the entrance; and 99 empty plastic bags described by the police officer expert witness as “phlebotomy bags.” (Chakos was a phlebotomist.) (Chakos, supra, 158 Cal.App.4th at pp. 360–361.) The police officer expert had extensive narcotics training and experience, including training regarding growing, selling, and packaging marijuana. But he had no prior experience, and apparently no training, with respect to medical marijuana. (Id. at pp. 361–362.) The officer opined that Chakos possessed all of the marijuana for the purpose of sale. As the basis for his opinion, the officer cited the money and the quantity of marijuana found in the car, which was consistent with the amount a dealer would sell to a user. Other factors were the surveillance system, scale, and packaging material found at Chakos’s residence. (Ibid.)
The Chakos court found no basis for distinguishing Hunt. It concluded that “expertise in distinguishing lawful patterns of possession from unlawful patterns of holding for sale” was necessary (Chakos, supra, 158 Cal.App.4th at p. 367), and the police officer expert was no “more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale” (id. at pp. 368–369). Accordingly, the court found the expert was “unqualified to render an expert opinion in this case,” and concluded that the evidence was insufficient to support Chakos’s conviction of possessing marijuana for the purpose of sale. (Id. at p. 369.)
As far as the record reveals, Lopez was no more qualified than the expert in Chakos to address the lawful possession of marijuana pursuant to the Compassionate Use Act or Medical Marijuana Program laws. But, unlike in Chakos and Hunt, Lopez based his opinion that minor possessed the marijuana for the purpose of sale on the packaging and other factors, not the quantity of marijuana minor possessed. He did not testify (or know) about the “normal” usage of either a casual or a medicinal user. And, as contemplated in Hunt, supra, 4 Cal.3d at page 238, at least some of the factors Lopez cited as the basis for his opinion were “not to be expected in connection with a patient lawfully using the drugs as medicine,” namely, the possession of 41 individually packaged portions, minor’s difficulty in accounting for his possession of a significant quantity of cash and his recent expenditures in light of his short employment history and modest wages, and the lack of any paraphernalia. We conclude Lopez was qualified to render the expert opinion to which he testified. He did not venture beyond his expertise, and his testimony may be considered in determining the sufficiency of the evidence.
In assessing the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the juvenile court’s finding, so that a reasonable fact finder could find the allegation true beyond a reasonable doubt. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088–1089.) We also presume in support of the juvenile court’s finding the existence of every fact the court could reasonably deduce from the evidence and make all reasonable inferences that support the finding. (Id. at p. 1089.) Where substantial evidence supports the finding, we must affirm, even though the evidence would also reasonably support a contrary finding. (Peoplev.Towler (1982) 31 Cal.3d 105, 118.)
Minor’s possession of marijuana packaged in 41 separate, single-serving baggies, coupled with the inherent discrepancy between his limited financial resources from employment and the quantity of cash he possessed and had recently spent constituted substantial evidence supporting the juvenile court’s finding that minor possessed marijuana for the purpose of sale. The court expressly rejected minor’s testimony about purchasing the 41 baggies for personal use and his testimony that he obtained all of the money from his wages at Wendy’s. Minor’s testimony regarding the length of his employment at Wendy’s and the number of paychecks he had received from this employment was inherently contradictory: in order to have received four or five biweekly paychecks, he would have to have been employed at Wendy’s for eight to ten weeks, yet he testified he had only worked there for three or four weeks, starting sometime in July. Minor testified that he had been paid five times and saved $100 from each paycheck, yet this failed to explain the total amount of the cash he possessed upon his arrest and his admitted expenditures from August 14 through August 19. He admittedly spent at least $130 on August 14 to purchase his medical marijuana card. He then spent $295 for marijuana on August 19, and he was carrying $207 upon his arrest. These amounts totaled $632, which exceeded his claimed savings. In addition, he testified that on two prior occasions in the month of August he had purchased marijuana from the dispensary or provided money to a friend to do so. These additional purchases would appear to have further reduced his claimed $500 savings. These apparent discrepancies in minor’s account of his finances supported a strong inference that he had obtained money from drug sales, which in turn supported and inference that he intended to sell at least some of the marijuana seized by the police. In addition, minor was arrested in an area of frequent drug sales and lacked smoking paraphernalia and burnt fingertips. The trial court’s finding that minor possessed at least some of the marijuana for the purpose of sale was supported by ample evidence.
2. Refusal to appoint expert
At the start of the adjudication hearing, defense counsel addressed the juvenile court’s prior denial of a motion to appoint a particular person as an expert. No written motion for appointment of an expert is contained in the appellate record. On our own motion, we have examined the juvenile court’s file in this matter. It also contains no written motion to appoint an expert. If there were a written motion, minor had the burden of providing a record on appeal that establishes both the existence of an error or violation of his rights and resulting prejudice. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; People v. Bell (1998) 61 Cal.App.4th 282, 291; People v. Green (1979) 95 Cal.App.3d 991, 1001.) Because neither the appellate record nor the juvenile court’s file contains a written motion for appointment of an expert, our analysis is necessarily based solely upon counsel’s statements on the record at the commencement of the adjudication hearing.
Counsel told the court that the person minor wanted appointed was “an expert in the issue of drugs sales and drug types of cases.” Counsel stated that she “believe[d] his testimony would have been helpful to the defense. It would have been consistent with the defense theory of the case, which is that this... marijuana was for personal use, not for sale.” The court remarked that common sense indicated that possession of “700 plus grams of marijuana” would be for the purpose of sale. Counsel clarified for the court that the amount of marijuana seized was 174 grams, with a net weight of 100 grams. The court stated, “I don’t see it’s going to add anything. I think you are familiar with the examination that needs to be done. I loathe to spend those kind of resources on a drug expert, so I’m going to deny your request.”
On appeal, minor argues that expert testimony was necessary “to demonstrate that [minor] possessed the marijuana for personal and/or medicinal use, as opposed to possessing it for purposes of sale.” He asserts that “the defense expert could have testified regarding the normal use patterns of persons who habitually use marijuana, and those who purchase medicinal marijuana.” Minor thus contends that the juvenile court abused its discretion and violated his constitutional rights to due process and equal protection by denying his request for a court-appointed expert.
An indigent defendant has a statutory and constitutional right to publicly funded ancillary services—such as appointment of an expert—reasonably necessary to prepare a defense. (People v. Guerra (2006) 37 Cal.4th 1067, 1085.) The defendant has the burden of demonstrating the need for the requested services “by reference to ‘“the general lines of inquiry he wishes to pursue, being as specific as possible.”’” (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 320.) We review the trial court’s ruling on a motion for ancillary services for abuse of discretion. (Guerra, at p. 1085.)
As far as the record reveals, minor’s motion requesting appointment of an expert made no mention of a medical marijuana defense but simply referred to personal use. Nor did he indicate that the particular individual he sought to have appointed possessed expertise regarding medical marijuana use. Because he either failed to assert in the juvenile court the ground upon which he now relies or failed to provide a record on appeal demonstrating that he raised this ground in the juvenile court, minor forfeited his claim to the extent it pertains to appointment of an expert regarding medical marijuana usage. (People v. Ray (1996) 13 Cal.4th 313, 339; Ballard v. Uribe, supra, 41 Cal.3d at p. 574.)
With respect to the appointment of an “expert in the issue of drugs sales and drug types of cases,” minor made an insufficient showing. Minor merely argued that the expert would be “helpful to the defense,” not that his services were reasonably necessary to the preparation or presentation of minor’s defense. “[I]t is only necessary services to which the indigent defendant is entitled, and the burden is on the defendant to show that the expert’s services are necessary to his defense.” (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304, overruled on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452.) A showing that the services of an expert “would be nice to have,” “would be convenient,” or “might turn up something favorable to the defense” is insufficient to demonstrate a reasonable necessity. (Puett v. Superior Court (1979) 96 Cal.App.3d 936, 942.) In addition, minor did not refer to any particular lines of inquiry he would have pursued with the expert. At best, his argument indicated he would inquire about the generic topics of “drugs sales and drug types of cases.” This showing was especially weak in light of the facts that strongly suggested possession for sale. Nothing indicates that the expert would have provided testimony defusing the clear import of 41 individually packaged portions. We cannot conclude the juvenile court abused its discretion by denying minor’s request to appoint an expert.
Minor’s claims of constitutional violations are dependent upon a finding that the juvenile court abused its discretion. Given our finding that the court did not abuse its discretion by refusing to appoint an expert, minor’s constitutional claims fail. (People v. Roybal (1998) 19 Cal.4th 481, 506, fn. 2.) In addition, minor forfeited these claims by failing to raise them in the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 880–881.)
Minor’s contention that the denial of his motion indicated that the juvenile court was biased against him also fails. Minor made a vague, conclusory, and inadequate showing of his need for an expert. The court’s ruling was justified and did not reflect impartiality, as opposed to a proper application of the rules of law. Minor’s attempt to juxtapose the admission of Lopez’s expert testimony with the denial of his motion adds nothing to his argument, as different considerations and standards applied to the two issues, and the juvenile court reached correct decisions as to each.
DISPOSITION
The order under review is affirmed.
We concur: ROTHSCHILD, J., CHANEY, J.