P. v. Martinez

Filed 3/22/07 P. v. Martinez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Jerry Martinez appeals the judgment entered after a jury convicted him of possessing methamphetamine for sale (Health  Saf. Code^[1],  11378) and possession of a smoking device ( 11364). Martinez admitted that he was out on bail in another case at the time of the offenses. (Pen. Code,  12022.1.) He was originally sentenced to three years four months in state prison, consisting of sixteen months on the methamphetamine possession count and a consecutive two-year term for the section 12022.1, subdivision (b) enhancement. The trial court subsequently stayed the section 12022.1, subdivision (b)

enhancement.^[2] Martinez contends the prosecutor presented incorrect legal theories to the jury during closing argument and that the evidence is insufficient to support the jury's finding that he intended to sell the methamphetamine found in his possession. We affirm.

FACTS AND PROCEDURAL HISTORY

On May 9, 2005, Martinez was contacted by the police at his motel room in Newbury Park. One of the officers looked into the room and saw a sandwich bag containing a white substance that appeared to be methamphetamine. The officers entered the room and discovered two glass pipe smoking devices, a nylon bag containing a crystalline ball that appeared to be methamphetamine, 25 small plastic bags, a digital scale, and a tin box containing a substance that appeared to be methamphetamine. The police also found $173 in cash in Martinez's pocket. At the time of his arrest, Martinez appeared to be under the influence of a controlled substance. Julie Cota, who was with Martinez in the room at the time and appeared to be living there, was also arrested.

The sandwich bag found in Martinez's room contained 14.23 grams of methamphetamine, while the crystalline ball was a white granular substance containing 2.97 grams of methamphetamine. The substance recovered from the tin box was 15.95 grams of a granular material containing dimethylsulfone, which is used as a cutting agent for methamphetamine.

A Ventura County Sheriff's Department detective testified that a person in possession of 17.29 grams of methamphetamine, a scale, and plastic bags had the intent to sell the methamphetamine. The detective also opined that an addict would not need a scale, and would know the difference between methamphetamine and a cutting agent. If a person blended the 17.29 grams of methamphetamine with the 15.95 grams of dimethylsulfone, he could sell the combined 33.24 grams for between $850 and $900. If broken into individual grams, they could be sold for approximately $2,310.

Martinez testified that he had started using methamphetamine about four years earlier and has become a hard-core addict in the past six months, using two to three grams a day. He also testified he was a general contractor and that he shared the drugs with his coworkers on the job site. He explained that he had bought the dimethylsulfone believing it was methamphetamine, and had kept it because the dealer he bought it from told him he would "make it right [for him]" when they did business again. Martinez claimed that he used the small plastic bags to carry small amounts of methamphetamine to work, and that he had the scale to make sure he was getting what he paid for. He also admitted that he shared his methamphetamine with Cota, who was living with him at the time of his arrest.

John Jenks testified as an expert on Martinez's behalf. Jenks, a former member of the Ojai and Port Hueneme Police Departments, became a certified drug and alcohol counselor after he lost his law enforcement career due to cocaine addiction. According to Jenks, Martinez's personal use of methamphetamine was consistent with the use of hundreds of people Jenks had counseled. For example, heavy addicts are paranoid and might use a scale to avoid being shortchanged, and might also use small baggies to regulate their usage or to hide the drug from fellow users. Based on his experience, Jenks believed that two reasonable conclusions could be drawn as to the purpose of Martinez's possession of the methamphetamine.

DISCUSSION

Martinez contends that his conviction for possession for sale of methamphetamine must be reversed because the prosecutor presented incorrect legal theories to the jury in his closing argument. Specifically, he challenges the prosecutor's arguments (1) that the definition of "sale" includes an exchange for non-cash benefits, and that Martinez received such a benefit in the form of the "self-gratification" he received from admittedly sharing his drugs with others; and (2) that if defense witness Jenks had considered the fact that dimethysulfone was found along with the methamphetamine, it would have "tipped the scale" such that Jenks would have had to concede that Martinez possessed the methamphetamine for sale. We reject both contentions.

As the People correctly note, Martinez waived his right to challenge these arguments by failing to object to them when they were made. Although Martinez argues that no objections were necessary because "[t]rial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place" (People v. Guiton (1993) 4 Cal.4th 1116, 1131), he fails to establish that the court failed to properly instruct the jury in this regard.

On the charge of possession of methamphetamine for sale, the jury was instructed that " '[s]ale' means any exchange of methamphetamine for cash, favors, services, goods or other non-cash benefits." (CALJIC No. 12.01.) During closing argument, the prosecutor argued that the "self-gratification" Martinez received from sharing his methamphetamine with his co-workers and his roommate qualified as a "non-cash" benefit sufficient to sustain a finding that he possessed the methamphetamine with the intent to sell it. He also argued that Martinez had essentially admitted to the crime of furnishing methamphetamine ( 11379, subd. (a)), which he characterized as "a crime more serious that the one he's charged with."

Martinez does not dispute the correctness of the "sale" instruction the jury was given, but nevertheless claims that it failed to disabuse the jury of the prosecutor's argument that merely receiving pleasure from furnishing drugs to others would be sufficient to sustain the finding that he had the requisite intent to sell. We disagree. The instruction refers to an "exchange," which is commonly understood as a reciprocal transaction in which two parties receive something from each other. (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 404 [defining exchange as "to give and receive reciprocally"].) When the jury asked the court to define "sale" during its deliberations, the court reminded the jury that it had all the instructions it needed to decide the case and that the attorneys' arguments were not evidence. Accordingly, Martinez's claim that the prosecutor presented an incorrect legal theory in arguing that the "self-gratification" Martinez received from sharing his methamphetamine with others was sufficient to establish an intent to sell, is actually a claim of prosecutorial misconduct. Where the court properly instructs the jury, but the prosecutor misstates the law, "such an error would merely amount to prosecutorial misconduct . . . during argument, rather than trial and resolution of the case on an improper legal basis." (People v. Morales (2001) 25 Cal.4th 34, 43, see also p. 48 [recognizing it would be erroneous "to suggest that because the closing argument is part of the presentation of the state's case, error may arise solely from improper remarks made therein"].) Because he did not raise that claim below, it is waived. (Id., at pp. 43-44.)

In any event, Martinez fails to establish a reasonable probability that the verdict would have been different in the absence of the prosecutor's remark. The jury was properly instructed on the elements of the crime, and we presume the jury relied on those instructions, and not the prosecutor's arguments, in reaching its verdict. (People v. Morales, supra, 25 Cal.4th at p. 47.) Moreover, the prosecutor's reference to Martinez's "self-gratification" was brief, and there was ample evidence from which the jury could infer that Martinez intended to sell, and not merely give away, the methamphetamine. Possession with the intent to sell may be established by circumstantial evidence (People v. Harris (2000) 83 Cal.App.4th 371, 374), and an expert's opinion that a defendant intended to sell drugs based solely on the quantity of drugs found in his or her possession is sufficient by itself to support a conviction (People v. Peck (1996) 52 Cal.App.4th 351, 357). The prosecution expert opined that Martinez's possession of 17.29 grams of methamphetamine, a scale, plastic baggies, and a cutting agent were indicative of an intent to sell. "'In cases involving possession of marijuana or [methamphetamine], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]' [Citation.]" (Harris, at pp. 374-375.) In light of this testimony and the instructions, it is not reasonably probable that the jury would have acquitted Martinez on the charge of possessing the methamphetamine for sale had the prosecutor not argued that the "self-gratification" he received from sharing it with others was sufficient to sustain the charge.^[3]

Martinez's attack on the prosecutor's argument regarding "tipping the scale" is similarly unavailing. The jury was properly instructed on the prosecution's burden of proof, and Martinez did not object below to the remark he now challenges. Accordingly, the claim is waived. (People v. Morales, supra, 25 Cal.4th at pp. 43-44.) In any event, we discern no error in the remark. In referring to "tipping the scales," the prosecutor merely argued that Martinez's expert would have been unable to testify as he did that two reasonable conclusions could be drawn as to the purpose of Martinez's possession of the methamphetamine had he considered that Martinez also possessed a cutting agent. In other words, the prosecutor did not argue, as Martinez contends, that the experts' failure to consider the dimethylsulfone rendered the intent-to-sell theory more reasonable than the defense expert's theory that the evidence was consistent with personal use. Even if the jury somehow interpreted the argument in this fashion, the instructions clearly provided that the jury was to accept any reasonable interpretation of the evidence that was consistent with innocence. (CALJIC No. 2.01.) As we have already noted, jurors are presumed to rely on the instructions, and not argument, in reaching their verdict. (Morales, at p. 47.) Under the circumstances, Martinez fails to establish a reasonable probability that the verdict would have been different in the absence of the "tipping the scales" remark.

In light of the foregoing, we find no merit in Martinez's claim that the evidence is insufficient to support the finding that he had the requisite intent to sell the methamphetamine found in his possession.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Susan B. Gans-Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Paul M. Roadarmel, Jr., Supervising Deputy Attorneys General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Health and Safety Code, unless otherwise noted.

^[2]We grant the People's request to augment the record to include the September 7, 2006, minute order reflecting that the section 12022.1, subdivision (b) enhancement has been stayed. We also grant Martinez's request for judicial notice of the minute order filed in the case giving rise to the enhancement, which indicates that the charges were dismissed on July 14, 2006, and that the abstract of judgment was amended accordingly. Martinez's claim that the enhancement should be stayed is therefore moot.

^[3]In light of our conclusions, we need not address the People's claim, raised for the first time in a supplemental brief, that "a gift comes within the legal definition of sale in California[.]"