P. v. Wilson

Filed 9/6/07 P. v. Wilson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Wesley L. Wilson was convicted by a jury of possession of marijuana for sale (Health & Saf. Code, 11359) and was sentenced to three years probation, the first of which to be served in the Kern County Jail. Appellant appeals, alleging insufficient evidence regarding the narcotic nature of the substance found in his possession. For the following reasons, the judgment will be affirmed.

FACTS

Appellant was pulled over for speeding by Officers Dunn and Gillette on the early morning of March 28th, 2006. Both officers testified to smelling unburned marijuana while questioning appellant. At that point, appellant admitted that he had just smoked some good bud up in here, but said there was nothing left. Searching the car, Officer Gillette uncovered a Pringles can with a false bottom and a compartment containing 11 small plastic bags, which appellant immediately acknowledged as marijuana.

According to Officer Dunn, appellant later admitted, during questioning at the police station, that the substance found in the Pringles can was marijuana, that there was approximately half an ounce total, and that he typically sold each bag for $15-$20 to support his personal habit. At trial, appellant denied admitting anything more than the probable value of the baggies, saying instead that he had purchased the marijuana found in his possession for entirely personal use.

DISCUSSION

The issue on appeal is the sufficiency of the evidence presented identifying the narcotic nature of the substance found in appellants possession. As such, this court will consider the evidence in the light most favorable to the trial courts judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnson (1980) 26 Cal.3d 557, 578.) A reversal of the judgment would be inappropriate if the circumstances reasonably justify the trier of facts finding. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Johnson, supra, 26 Cal.3d 557.) Clearly, there is sufficient evidence in the record to warrant the jurys finding.

A failure to perform chemical tests or analysis on the substance found in appellants possession is not determinative of the sufficiency of evidence in this case. California courts have consistently held that circumstantial evidence is sufficient proof regarding a substances narcotic nature. (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) The court in Sonleitner noted that sufficient circumstantial evidence may be established by evidence that the substance was part of a larger quantity which was chemically analyzed [citations], by the expert opinion of the arresting officer [citation], and by the conduct of the defendant indicating consciousness of guilt. [Citation.] (Id. at p. 369) While chemical analysis would have provided definitive proof that the substance appellant possessed was marijuana, the circumstantial evidence in this case, including expert testimony, stipulations at trial, and admissions made by appellant, is sufficient to affirm the judgment of the trial court.

Officer Dunns experience and training qualify him as an expert witness in the identification of marijuana. Under Evidence Code section 720, subdivision (a), a person is qualified to testify as an expert witness if he or she has some background sufficient to qualify [he/she] as an expert on the subject to which [his/her] testimony relates. Officer Dunn participated in a 40-hour drug and narcotic recognition class as part of his academy training, during which time he was trained in detecting the odors of both burned and unburned marijuana. Additionally, Dunn gained actual experience in the field of narcotics and drug recognition during his four month field training and the year he had been serving on the police force prior to appellants arrest. Appellant makes a point of noting that Dunn had only qualified as an expert witness on one prior occasion, which was earlier in this case. However, prior experience or testimony as an expert witness has never been a requirement for qualification and appellant fails to provide any law to the contrary. Considering his extensive background in the area of narcotic recognition and his actual work experience, there is no basis for questioning Officer Dunns qualifications as an expert witness in the identification of marijuana.

The jury instructions provided by the trial judge reflect that Officer Dunn was recognized as an expert witness by the court. As a rule, the trial court is to determine, in the exercise of a sound discretion, the competency and qualification of an expert witness to give his opinion in evidence [citation], and its ruling will not be disturbed upon appeal unless a manifest abuse of that discretion is shown. (Miller v. Los Angeles CountyFlood Control Dist. (1973) 8 Cal.3d 689, 701.) When the trial court judge instructed the jury regarding expert testimony and the qualifications of an expert he acknowledged Officer Dunns role as an expert witness in the area of narcotic detection. Considering Dunns credentials in the field and his lengthy testimony on the subject, the trial court did not abuse its discretion when instructing the jury.

Appellant waived the opportunity to question Officer Dunns qualifications as an expert witness when he failed to timely object to Officer Dunns testimony. Objections concerning the qualifications of an expert witness cannot be made for the first time on appeal. (Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 775.) This court applied the rule in People v. Bailey when it recognized an officers expert testimony regarding the identification of cocaine as sufficient support for the trial courts ruling. (People v. Bailey (1991) 1 Cal.App.4th 459.) The appellant in Bailey argued, as the appellant in the current case seems to, that when inadmissible evidence is introduced without objection at trial it may not be considered in evaluating the sufficiency of evidence on appeal. (Id.at p. 463.) The court rejected the argument as contrary to well-settled rules of appellate review. (Ibid.) Simply put, in failing to raise any objections related to the adequacy of his qualifications in the trial court, appellant forfeited the right to do so on appeal.

The narcotic nature of the substance was not in dispute during the trial. Similar to the situation in Bailey, supra, the parties assumed that the substance was in fact marijuana. The central issue at trial was whether the marijuana was intended for sale or personal use. Following Officer Dunns testimony, the parties stipulated that the defendant has knowledge of the marijuana as a narcotic character. Technically, the stipulation confirms only appellants awareness that marijuana is a narcotic. However, under the circumstances, given Officer Dunns opinion, appellants admission as well as his trial testimony, we can reasonably infer that the substance found in appellants possession was marijuana.

At various times throughout the trial appellant admitted to having marijuana in his possession for personal use. Taken with the other evidence, the admission tends to prove his guilt when considered with the rest of the evidence.

The judgment is affirmed.

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^* Before Ardaiz, P.J., Levy, J. and Cornell, J.