Opinion
D060313
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. PRENTICE TONELL GRANT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FSB803430)
APPEAL from a judgment of the Superior Court of San Bernardino County, Kyle S. Brodie, Judge. Affirmed.
A jury convicted Prentice Tonell Grant of selling or transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Grant admitted two prior strikes, and the trial court sentenced him to a prison term of 25 years to life.
Grant contends that (1) the trial court erred in giving an aiding and abetting instruction to the jury; and (2) the trial court prejudicially erred in admitting expert testimony that the narcotics at issue were in a usable amount. We conclude that Grant's contentions lack merit, and we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
San Bernardino County Sheriff's Deputy Cesar Alban and United States Deputy Marshall Jamie Caballero conducted an undercover narcotics investigation in front of a liquor store. According to the testimony of Deputy Alban and Deputy Caballero, while they were inside their vehicle, Grant walked up to them. Deputy Caballero asked Grant if he had any "smoke." Deputy Alban asked Grant if he had any "rock." Grant said, "Yeah" and walked over to a man later identified as Singa Jones. Grant returned to the car and handed a rock of cocaine to Deputy Alban in exchange for a $20 payment. Grant walked away and gave the money to Jones.
Grant was arrested and charged with one count of transporting or selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). The information also alleged two prior strikes. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
Grant testified at trial, admitting that he spoke to Deputy Alban and Deputy Caballero in front of the liquor store, but contending that he did not sell them any narcotics because he figured out they were law enforcement officers. The jury convicted Grant, he admitted the prior strikes, and the trial court sentenced him to prison for a term of 25 years to life.
II
DISCUSSION A. The Trial Court Properly Instructed the Jury on the Theory of Aiding and Abetting
Grant's first contention is that the trial court improperly instructed the jury that he could be guilty of the charged crime under a theory of aiding and abetting. Specifically, Grant contends that the trial court improperly instructed on aiding and abetting with CALCRIM Nos. 400 and 401 because the evidence could not support a finding that Grant committed the charged crime of transporting or selling a controlled substance by aiding and abetting another actor.
Grant's argument is based on the principle that "[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the
case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) He argues that the theory of aiding and abetting was inapplicable here because the prosecution "presented no evidence to support an aiding and abetting theory separate from an actual perpetrator theory." Focusing on the charge of transporting a controlled substance, Grant argues that the aiding and abetting instructions were not necessary under the facts presented because the testimony of Deputy Alban and Deputy Caballero, if credited by the jury, established that Grant directly transported the controlled substance by carrying it from Jones to them. Grant contends that, accordingly, the aiding and abetting instruction was irrelevant.
We note that although "giving an instruction that is correct as to the law but irrelevant or inapplicable is error," in most cases it isonly a technical error which does not constitute ground for reversal.(People v. Cross (2008) 45 Cal.4th 58, 67.) Here, because we conclude that the aiding and abetting instructions were relevant and applicable, we do not consider the issue of prejudice.
Grant's argument ignores that the crime charged was transporting or selling a controlled substance. Although the theory of aiding and abetting had minimal applicability to the allegation that Grant transported a controlled substance, it was highly relevant to the allegation that Grant sold a controlled substance. The evidence supported a finding that Grant was not the actual seller of the cocaine but acted only as a runner. As Deputy Alban and Deputy Caballero described the situation, Jones — not Grant — supplied the cocaine and obtained the money paid by Deputy Alban. During his testimony Deputy Alban elaborated on the nature of such an arrangement, equating Grant's position to that of a waitress in a restaurant. He stated, "I'd equate that to a waitress. . . . They are not the one who's making money by selling the product that you are eating, but they are the one that's serving you and getting rewarded sometimes by the tip or . . . in this case, happens to be narcotics. What happens, you will have one person who's holding . . . and then you will have runners who go back and forth. They will always get paid by the person who is holding the drugs, or they will get . . . paid or rewarded by the customer. . . . [T]hey will ask you, can we go get high together? And they will be happy with that."
Consistent with this testimony, the prosecutor put forth an aiding and abetting theory of liability during closing argument, explaining that Grant "could be guilty of it, even if he's not the seller, but he's aiding and abetting the seller." Referring to Deputy Alban's testimony, the prosecutor argued that Grant "was the waitress for Singa Jones."
Because there was evidence that Grant acted as a "runner" in the narcotics sales transaction, the aiding and abetting instructions were highly relevant to the allegation that Grant sold a controlled substance. This is accordingly not a situation where the instruction had "no application to the facts of the case" (Guiton, supra, 4 Cal.4th at p. 1129), and the trial court properly instructed the jury on the theory of aiding and abetting. B. Properly Admitted Evidence Supported a Finding That the Cocaine Was in a Usable Amount
Because the aiding and abetting instructions were relevant to the issue of Grant's guilt for selling a controlled substance, we also reject Grant's argument that giving the instructions violated his constitutional rights by depriving him of " ' a meaningful opportunity to present a complete defense.' "
We next consider Grant's contention that the trial court improperly admitted expert testimony from Deputy Alban that the cocaine at issue was in a usable amount.
The jury was instructed that a conviction for transporting or selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a) requires a finding that the substance was in a usable amount. (See People v. Rubacalba (1993) 6 Cal.4th 62, 66 [discussing "usable amount"]; CALCRIM No. 2300.) As the jury was instructed in CALCRIM No. 2300, "[a] usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user."
We note that the bench notes to CALCRIM No. 2300 explain that the requirement that a controlled substance be in a usable amount applies to the crime of transporting a controlled substance, but not to crime of selling a controlled substance. (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 ["A conviction for selling controlled substances does not require proof of possession at all, much less possession of a usable quantity."].) The parties do not discuss the relevance of this distinction, and we will assume for the purposes of our discussion, without deciding, that the jury was required to find that the cocaine at issue in this case was in a usable amount.
The prosecutor introduced evidence that the cocaine at issue in this case was in a usable amount by posing a question to Deputy Alban after establishing his qualifications to testify about narcotics sales and use. The prosecutor asked, "Based on your training and experience, the amount that you received was a usable amount?" Deputy Alban responded, "The cocaine that I obtained, yes."
The jury also heard testimony from Deputy Caballero that the rock of cocaine that Grant supplied was the size of a pencil eraser.
Grant argues that Deputy Alban's statement that the cocaine was in a usable amount was inadmissible because it exceeded the proper scope of expert testimony. According to Grant, Deputy Alban's testimony "usurped the jury's role in making this determination," and thus should have been excluded. Grant contends that Deputy Alban should have been limited to testifying generally about the manner and quantity in which rock cocaine is used rather than testifying to his opinion about whether the amount supplied by Grant in this case was in a usable amount. As we will explain, we reject Grant's argument for two reasons.
First, the argument is forfeited because defense counsel did not object to Deputy Alban's testimony. "Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.' Pursuant to this statute, ' ". . . 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable," ' " and the defendant forfeits his appellate arguments based on the erroneous admission of the evidence. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) This principle applies equally to the admission of expert witness testimony. (People v. Doolin (2009) 45 Cal.4th 390, 448; People v. Ward (2005) 36 Cal.4th 186, 211.)
Second, Grant's challenge to the admissibility of the evidence lacks merit. "[E]xpert opinion is admissible if it is '[r]elated to a subject that is sufficiently beyond common experience [and] would assist the trier of fact.' (Evid. Code, § 801, subd. (a).) . . . '[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (People v. Torres (1995) 33 Cal.App.4th 37, 45.) Further, " '[t]here is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.' . . . ' "Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.' '' (People v. Valdez (1997) 58 Cal.App.4th 494, 507.) Applying these principles, we conclude that Deputy Alban was properly permitted to offer expert testimony that the cocaine at issue was in a usable amount. The manner and practice of using rock cocaine is a subject sufficiently beyond the common experience of the trier of fact, and an opinion as to whether a specific quantity of rock cocaine constitutes a usable amount is the type of opinion on a simple ultimate issue, like the value of an article, that does not warrant further explanation and foundation from the testifying expert. Therefore, we conclude that the testimony was admissible.
Because we conclude that Deputy Alban's expert testimony was properly admitted, we need not and do not consider Grant's contention that defense counsel offered ineffective assistance by failing to object to the testimony.
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DISPOSITION
The judgment is affirmed.
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IRION, J.
WE CONCUR:
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HUFFMAN, Acting P. J.
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HALLER, J.