P. v. Magee

Filed 6/16/06 P. v. Magee CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown, Judge. Affirmed.

Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch and James D. Dutton, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Alexis Magee was convicted of one count of possession of marijuana for sale, in violation of Health & Safety Code section 11359. Having been sentenced to two years in prison, he appeals.

On appeal, defendant contends the trial court erred in refusing to allow cross-examination of a prosecution witness regarding his prior misdemeanor convictions. He also argues that the court allowed improper opinion testimony on the question of whether the marijuana was possessed with the intent to sell it.

Finding no reversible error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Officer Gonzalez of the Ontario Police Department testified that he was on routine patrol around midnight on March 26, 2005, when he drove into an alley connecting to Vineyard Avenue. He saw defendant and two other men standing under a carport in the alley. Defendant was holding a bag open and the other men were looking into it. When the men saw the police car, the two other men walked away and defendant went further into the carport.

The officer's partner, Ruben Espinoza, testified that defendant took the bag and placed it in a nearby car. Officer Espinoza retrieved the bag and found a partial brick of marijuana in the bag. Lab tests confirmed that the bag contained 388.3 grams (three-fourths of a pound) of marijuana.

One of the other men, Christian Oramus, testified that he gave defendant $20 on the morning of March 26 to purchase marijuana. Defendant gave him the marijuana near midnight, just before the officers arrived. Mr. Oramus told Officer Gonzalez that he had marijuana in his pocket. He was cited and paid a $150 fine.

Officer Gonzalez was allowed to testify to his opinion that defendant possessed the marijuana with the intent to sell it.

A. Impeachment by Misdemeanor Convictions

As noted above, the defendant contends the trial court erroneously refused to allow cross-examination of Mr. Oramus regarding the conduct underlying his prior misdemeanor convictions. The contention is based on the following facts:

Mr. Oramus testified that he was convicted two years earlier of petty theft and possession of stolen property. On cross-examination, he stated that it was a misdemeanor conviction. Defense counsel then asked: â€