Filed 7/31/17 P. v. Li CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
JIA HANG LI,
Defendant and Appellant.

A147503

(San Mateo County
Super. Ct. No. SC078178A)


Defendant Jia Hang Li appeals from his conviction, after jury trial, of unlawful possession of marijuana for sale (Health & Saf. Code, § 11359) and unlawful transportation of marijuana (§ 11360, subd. (a)). He raises two issues on appeal: (1) insufficient evidence supports the guilty verdicts because he raised a reasonable doubt his actions were protected under the Medical Marijuana Program (MMP) (§§ 11362.7 et seq. ), and (2) the prosecutor committed misconduct in closing argument. We affirm.
BACKGROUND
On an evening in February 2013, San Mateo County Deputy Sheriff Jacob Trickett responded to an armed robbery call at a McDonald’s restaurant in San Carlos. When the deputy arrived, defendant was standing in the parking lot waiving and yelling “ ‘[t]hey stole my car.’ ” Defendant provided Deputy Trickett with a description of his car and, though initially hesitant to tell the deputy why he was there, defendant eventually admitted he had arranged via a Craigslist advertisement to meet an individual inside McDonald’s to sell him medicinal marijuana for $200 per ounce.
Defendant had a physician’s statement and recommendation for medical marijuana use, and claimed he was part of the Feel Rite Association, a medicinal marijuana collective that he had joined four months earlier. He said he had become an “executive member,” which allowed him to recruit new members. At trial, defendant testified he posted the Craigslist ad because he intended to recruit the supposed purchaser as a new member of the collective. Although defendant did not disclose how much marijuana he had intended to sell, he told Deputy Trickett he had brought two pounds (908 grams) with him.
Defendant told the deputy he was approached by two men in the restaurant, who introduced themselves and sat down. Defendant explained how the collective worked and asked to see a medical marijuana card, which one of them produced and which bore the name “Victor Gonzalez” or “Victor Gomez” (hereinafter Victor). Victor then asked to see some marijuana samples. As they walked outside to defendant’s car, Victor pointed a gun at defendant and demanded his keys and cell phone. Defendant complied, and the men drove away in his car. Defendant went back inside the McDonald’s, borrowed an employee’s cellphone, and called 911.
While Deputy Trickett was speaking with defendant, he was advised defendant’s car had been located less than half a mile away. Deputy Trickett responded to the call, and when he arrived at the location, he found the car stopped in the middle of traffic with the engine running, headlights on, and the driver’s door open. The deputy also saw a large plastic baggie containing 160 grams of marijuana on the rear passenger floorboard, a cardboard box with several empty bags, and a digital scale in the center console. The interior of the car was permeated with the “strong odor” of marijuana. The bag of marijuana was marked with “ ‘227 grams,’ ” “ ‘Blue GDP’ ” (a strain of marijuana), and the name “Paul,” which defendant subsequently explained was the name of a friend who had a medical marijuana card but was not a member of the collective.
Deputy Trickett returned to the McDonald’s, and defendant agreed to accompany him back to the car. Defendant identified the bag of marijuana, the scale, and the car as his, and stated a second bag of marijuana was missing. About 10 minutes later, the Narcotics Task Force arrived and interviewed defendant. Afterwards, defendant was placed under arrest.
Meanwhile, Deputy Trickett searched defendant’s wallet, and found a business card for “ ‘Vincenity Medical Marijuana’ ” (defendant also goes by the name “Vincent”) that listed defendant’s personal phone number and referenced a Web site. When the deputy accessed the listed link, he saw pictures of different strains of marijuana and prices. Defendant had also written comments beneath the posted photos, such as “ ‘got a lot of good feedback now,’ ” “ ‘available again,’ ” and “ ‘temporary out for now.’ ”
At trial, defendant testified he had brought two bags of marijuana and the scale to the McDonald’s because he had just finished dinner, was in a rush, and did not know how much marijuana Victor might want to purchase. He had estimated the bags weighed a total of two pounds when he spoke to Deputy Trickett because he knew he had more than two ounces and rounded up. Defendant could not recall why he wrote “Paul” on the bag, describing it as “just [a] random marking.” Defendant also stated a blank membership form had been in the bag of marijuana that was stolen. Defendant said he had intended to check Victor’s medical marijuana card, call the hotline to verify he was a valid patient, fill out the membership form, and call the leader of the collective to ask how much to sell before providing any marijuana to Victor. He testified the price of $200 per ounce was to cover cultivation costs only and he would not make a profit on the sale.
Defendant said the Web site referenced on the business card that had been in his wallet was only a work in progress and was never meant to be public. He claimed he did not possess the advertised marijuana, and the descriptions and pictures were pulled from other Web sites. He intended, though, to start his own collective, called “Feel Better Now.” While he had submitted the paperwork two months earlier to register the collective as a nonprofit association, he had not received any approval as of the date of the incident. He also claimed he had not shared either the business card or the Web site with anyone at the time.
The prosecution presented evidence of a Craigslist advertisement for “dense, dark hash” posted a couple months prior to the incident. The ad also mentioned Feel Better Now, the collective defendant claimed he intended to start, and stated “ ‘By responding to this ad, you confirm that you are not associated with any type of law enforcement.’ ” Defendant could not recall who posted the advertisement, but asserted he had never provided medical marijuana through it and Victor had contacted him through a different posting. Defendant also testified he had not brought any “dense, dark hash” when he met Victor. He further claimed the McDonald’s meeting was the first time he had ever met someone to attempt to recruit a new collective member. Defendant stated he potentially would have sold Victor up to an ounce.
Deputy Gabriel Huerta, a special agent with the Narcotics Task Force, testified as an expert for the prosecution. Deputy Huerta stated two pounds of marijuana would have sold for between $9,080 to $18,160 when sold by the gram, or between $4,800 to $6,400 if sold in bulk. Dispensaries, in contrast, usually display only up to an eighth of an ounce (3.5 grams) and sell no more than an ounce (28.5 grams). Moreover, collectives typically weigh, package, and label marijuana prior to a sale. Deputy Huerta had never seen a collective sell product without its name being on it. Additionally, no medicinal user had ever told him that he or she had weighed marijuana before purchasing it, and in his opinion “a scale definitely equals sales.” Deputy Huerta also stated it is more common for a medicinal user to have a physician’s form, rather than a medical marijuana card, as a card costs more than a form.
The jury found defendant guilty of unlawful possession of marijuana for sale (§ 11359) and unlawful transportation of marijuana (§ 11360, subd. (a)). Defendant was sentenced to three years of probation, on the condition he serve 60 days in county jail, with credit for time served.
DISCUSSION
There Was Sufficient Evidence to Support Defendant’s Convictions
Defendant contends the jury should have found him not guilty, given the provisions of the MMP. (§§ 11359, 11360, subd. (a).) We review a challenge to the sufficiency of the evidence in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Avila (2009) 46 Cal.4th 680, 701.) If the evidence reasonably justifies the jury’s findings, the judgment must be affirmed even if the evidence could reasonably support a contrary finding. (People v. Brown (2014) 59 Cal.4th 86, 106.)
Section 11359 prohibits the possession of marijuana for sale, “except as otherwise provided by law.” Section 11360, subdivision (a) provides, in pertinent part, that, unless otherwise authorized by law, “every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any cannabis shall be punished.”
After the enactment of the Compassionate Use Act of 1996 (CUA) (§ 11362.5), which allows for certain medical uses of marijuana, questions arose as to whether the Act provided a defense to marijuana-related offenses not specifically referenced therein, such as the transportation of marijuana. (People v. Dowl (2013) 57 Cal.4th 1079, 1085–1086 (Dowl).) To address this question, the Legislature, in 2003, enacted the MMP. (§§ 11362.7 et seq.; Dowl, at p. 1086.)
The MMP seeks to “[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Sen. Bill No. 420 (2003–2004 Reg. Sess.) § 1(b)(3).) To this end, “qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section . . . 11359, [or] 11360. . . .” (§ 11362.775, subd. (a).) Such collectives may not, however, cultivate or distribute marijuana for profit. (§ 11362.765, subd. (a).)
“In People v. Jackson, [citation] . . . [the] court identified the essential elements of the collective cultivation defense . . . as (1) qualified patients who have been prescribed marijuana for medical purposes, (2) the patients collectively associate to cultivate marijuana, and (3) the patients are not engaged in a profit-making enterprise.” (People v. Orlosky (2015) 233 Cal.App.4th 257, 269 (Orlosky), citing People v. Jackson (2012) 210 Cal.App.4th 525 (Jackson).)
“Concerning the amount of evidence needed to require instruction on the collective cultivation defense, . . . the defendant only has a ‘minimal burden’ in this regard. [Citation.] That is, the defendant need only raise a reasonable doubt about the existence of the defense, and once this burden is met, the court must provide the instruction and inform the jury that the prosecution has the burden to disprove the defense beyond a reasonable doubt.” (Orlosky, supra, 233 Cal.App.4th at p. 269, quoting Jackson, supra, 210 Cal.App.4th at pp. 533, 538–539.)
In this case, the jury was instructed on the MMP defense, and defendant essentially maintains the jury should have believed his testimony, rather than crediting the testimony of Deputies Trickett and Huerta. He claims, for example, that the MMP defense applies because he “was credible in his testimony,” thus establishing he intended to sell marijuana to Victor only after verifying the latter’s patient status and recruiting him as a member of the Feel Right Today collective, and only for the costs of cultivation. However, issues of witness credibility are for the jury to decide. (People v. Brown, supra, 59 Cal.4th at p. 105.) “ ‘ “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” ’ ” (Id. at p. 106.) “ ‘Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.’ ” (Ibid.)
We need not, and do not, address the state of the evidence as to the first two prongs of the MMP defense, as there was overwhelming evidence defendant was “engaged in a profit-making enterprise,” thus disqualifying him under the third prong of the defense. Indeed, there was not a single aspect of the attempted transaction that was consistent with a legitimate sale to a medicinal user by a registered collective.
To begin with, there was plenty of evidence defendant was conducting the transaction on his own and not for the benefit of a legitimate collective. The business card in his wallet was for “ ‘Vincenity Medical Marijuana,’ ” and referenced his personal telephone number. It also referenced a Web site showing numerous marijuana strains and sales prices, which defendant had annotated with comments about the products. No evidence corroborated defendant’s claim that he was merely an agent for the “Feel Right Today” collective, trying for the first time to recruit a new medicinal-user member.
Furthermore, defendant admitted having two bags of marijuana in his car, which he told Deputy Trickett he thought totaled about two pounds. Deputy Huerta testified this amount would have had a sales value of $9,080 to $18,160 if sold by the gram, or $4,800 to $6,400 if sold in bulk. Deputy Huerta further testified dispensaries usually display only up to an eighth of an ounce and sell no more than an ounce. Moreover, collectives typically weigh, package, and label their product prior to a sale, and Deputy Huerta had never seen a collective sell product without its name on it. Defendant’s product was not in pre-measured and pre-weighed packets, and it did not bear any collective’s name. Additionally, Deputy Huerta had never heard of a medicinal user weighing his or her marijuana. Not only did defendant have two bulk bags of marijuana, he was carrying a set of scales.
Defendant takes issue with the officers’ testimony, claiming “there was no showing of expertise in the ability to distinguish lawful from unlawful possession for sale.” However, defendant never raised this objection at trial and therefore has forfeited the issue. (Dowl, supra, 57 Cal.4th at p. 1087.) In any case, there is no merit to this contention. Both People v. Hunt (1971) 4 Cal.3d 231 (Hunt), and People v. Chakos (2007) 158 Cal.App.4th 357 (Chakos), on which defendant relies, are readily distinguishable.
The defendant in Hunt was convicted of possessing methedrine for sale. (Hunt, supra, 4 Cal.3d at p. 233.) He had a prescription for the drug and testified he had never sold the drug to anyone nor did he intend to do so. (Id. at p. 235.) An officer testified that “based upon his experience it was his opinion that the methedrine found in . . . [a] travel case . . . was possessed for sale. He said that his opinion was due ‘to the quantity involved, the over-all street value, the normal use by an individual.’ ” (Id. at pp. 234–235.) The Supreme Court reversed stating, “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 medicinal use. (Id. at pp. 237–238.) The court held, in the absence of evidence of circumstances not to be expected in connection with lawful purchase, an officer’s opinion of unlawful sales “is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction.” (Id. at p. 238.) The court determined no such circumstances had been shown—the quantity found could have been as little as a two-week supply, all of the methedrine in the travel case was labeled with the defendant’s name on it, and there was no evidence suggesting the defendant was in business with another man found in the same place where he was arrested. (Id. at pp. 237–238.) The circumstances here are markedly different, as we have discussed. There was substantial evidence that defendant’s possession of the marijuana had all the attributes of being possessed for sale, and none of the attributes ordinarily associated with a sale of medicinal marijuana by a legitimate collective.
In Chakos, supra, 158 Cal.App.4th 357, an officer testified as both a percipient and expert witness. (Id. at p. 361) The Court of Appeal, building upon Hunt, concluded the record did not show the deputy was “any more familiar than the average layperson . . . with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale.” (Chakos, at pp. 359–360, 368–369, italics omitted.) Thus, when the defendant offered evidence he lawfully possessed marijuana for medical purposes, the court stated the deputy’s contrary opinion could not constitute substantial evidence unless the deputy had “expertise in distinguishing lawful patterns of possession from unlawful patterns of holding for sale.” (Id. at p. 367.) In this case, in contrast, the record shows Deputy Huerta had training and experience in distinguishing between illicit marijuana sales and lawful sales by collectives. He was familiar with state laws governing collectives and the sale of marijuana, and he had been to medical marijuana dispensaries, such that he had knowledge of how dispensaries and collectives typically package their marijuana. He also had testified as an expert in other cases where individuals had claimed to be associated with a collective. Accordingly, there was no error in admitting Deputy Huerta’s expert testimony, and it amply suffices to support the convictions.
Deputy Trickett testified as the officer on the scene and was simply a percipient witness. Accordingly, there was also no error in allowing his testimony.
The Prosecutor’s Statement Does Not Constitute Improper Vouching
During closing argument the prosecutor stated: “I think [defendant] was working—personally, I think the evidence shows that he was working for Feel Better Now. That’s his own personal business venture. And it was not a legitimate non-profit at the time of this offense.” Defendant objected to these remarks as vouching, but was overruled. On appeal, defendant maintains the prosecutor committed prosecutorial misconduct by stating she personally believed defendant was working for his own nascent business venture.
“The role of a prosecutor is to see that justice is done.” (Connick v. Thompson (2011) 563 U.S. 51, 71.) Prosecutorial misconduct violates the federal Constitution when it is “ ‘sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process.’ ” (People v. Masters (2016) 62 Cal.4th 1019, 1052.) Under state law, prosecutorial misconduct exists where a prosecutor “makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.” (People v. Riggs (2008) 44 Cal.4th 248, 298.)
Impermissible vouching occurs when prosecutors attempt to strengthen their case by invoking the prestige or reputation of their office. (People v. Linton (2013) 56 Cal.4th 1146, 1207.) Similarly, suggesting there are facts not before the jury that corroborate one’s position is prosecutorial misconduct. (Ibid.) However, during closing argument, the prosecutor is permitted to comment on reasonable inferences that may be drawn from the discussed evidence. (People v. Morales (2001) 25 Cal.4th 34, 44.)
When a prosecutor’s comments rise to prosecutorial misconduct, we evaluate “ ‘ “whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.) Moreover, a prosecutor’s statements must be evaluated in context to determine if there is a substantial risk the jury would consider the comments to be based on facts not in evidence. (People v. Lopez (2008) 42 Cal.4th 960, 971.) In this analysis, “we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
Here, while the prosecutor’s choice of words could have been more artful, she did not purport to rely on her outside experience or her personal beliefs based on facts not in evidence. Rather, she explicitly linked her comment to the evidence: “I think he was working—personally, I think the evidence shows that [defendant] was working for Feel Better Now.” Accordingly, there is no reasonable likelihood a juror would have construed this brief comment by the prosecutor as suggesting there was evidence not before the jury, or that the jury should agree with her simply because of her position. Furthermore, the jury was instructed that nothing an attorney says is evidence.
Consequently, given the brevity of the prosecutor’s basically innocuous comment, the extensive argument by defendant’s own attorney, the presumption that jurors follow the instructions given them (People v. Pearson (2013) 56 Cal.4th 393, 414), and the overwhelming evidence that supports the jury’s verdicts, any supposed misconduct was not prejudicial.
DISPOSITION
The judgment is affirmed.






_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Margulies, J.