PEOPLE v. DOWLAppellant’s Petition for ReviewCal.May 12, 2010m e () $182621 IN THE SUPREME COURTOF THESTATE OF CALIFORNIA ) PEOPLE OF THE STATE OF CALIFORNIA, ) | ) Plaintiff/Respondent, ) No. v. ) ) 5 Crim. F057384 LEWIS MARCUS DOWL, ) ) Petitioner/Appellant. ) (Kern County Superior Court ) No. BF125801A) ) PETITION FOR REVIEW After Decision by the Court of Appeal, May £9 2018 Fifth Appellate District Filed April 6, 2010 THOMASM. SINGMAN State Bar # 56102 Attorney at Law P.O. Box 6237 Albany, CA 94706 (510) 836-2400 Attorney for Petitioner/Appellant Lewis Marcus Dowl TABLE OF CONTENTS PETITION FOR REVIEW ..... 0... cece cece cece cee cc een enees 1 QUESTIONS PRESENTED 2.0... .. cc ccc cece cece cece cence 2 NECESSITY FOR REVIEW .........eee cece wenn ees c ce esuens 3 PETITION FOR REHEARING STATEMENT..............2008. 3 STATEMENT OF FACTS .......... cc cee cece ccc eee een eeeeece 3 ARGUMENT ... cece cece ccc eee cece eee e tenet en eeeees 4 I. REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER PENAL CODE SECTION 4019, AS AMENDED ON JANUARY25, 2010, WHICH INCREASED PRESENTENCE CREDITS FOR CERTAIN CRIMINAL DEFENDANTS WHO HAVE NO CURRENT OR PAST CONVICTIONS FOR VIOLENT OR SERIOUS FELONIES, AND WHO ARE NOT REQUIRED TO REGISTER AS SEX OFFENDERS, APPLIES RETROACTIVELY TO PERSONS WHOSE APPEALS WERE NOTFINAL ON REVIEW AT THE TIME OF THE AMENDMENT AND, RELATEDLY, WHETHER PROSPECTIVE APPLICATION OF THE AMENDMENT LIMITING IT TO PERSONS WHO HAD NOT BEEN SENTENCED AT THE TIME THE AMENDMENT BECAMEEFFECTIVE VIOLATES THE RIGHT OF THOSE PERSONS WHO HAD BEEN SENTENCED PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENT BUT WHOSE APPEALS WERE NOT FINAL ON REVIEW AT THE TIME OF THE AMENDMENTTO EQUAL PROTECTION OF THE LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLEI, SECTION 7 OF THE CALIFORNIA CONSTITUTION...... 4 A. Introduction ............ ccc ccc ccc cece cece ce esces 4 B. It Is a Violation of Equal Protection Principles Not to Apply AmendedSection 4019 Retroactively ........... 5 C. Review Should Be Granted .............ccccccees 8 Il. REVIEW SHOULD BE GRANTED TO SECURE UNIFORMITY OF DECISION AND SETTLE AN IMPORTANT QUESTION OF LAW AS TO WHETHER THE OPINION OF A POLICE OFFICER WITH NO EXPERTISE IN DIFFERENTIATING CITIZENS WHO POSSESS MARIJUANA LAWFULLY FOR THEIR OWN CONSUMPTION FROM THOSE WHO POSSESSIT UNLAWFULLYWITH THE INTENT TO SELL, MAY SERVE AS SUBSTANTIAL EVIDENCE SUFFICIENT TO SUPPORT CONVICTIONS FOR POSSESSION OF MARIJUANA FOR SALE AND FOR TRANSPORTATION OF MARIJUANA OF A PERSON WHO POSSESSES A VALID MEDICAL MARIJUANA CARD. 20... ... ccc ccc ccc cece erence enee 10 A. Introduction ......... 0.0.0 ccc cece ec cece ec cces 10 B. The Court’s Rejection of Chakos Is Based on an Unjustified Extension of the Reasoning in People v. 07(14 11 C. Review Should Be Granted ..............20 2000 15 CONCLUSION 2... cc ccc ccc ccc cc cw ccc cnc c cee ccecvenee 17 CERTIFICATE OF COMPLIANCE ....... ccc ccc cece ee eeee 17 il TABLE OF AUTHORITIES CASES In re Winship (1970) 397 U.S. 358 0... cece cece cece eee e eee cees 14 In re Kapperman (1974) 11 Cal.3d 542 ....... cc cece cece eee c eee 6, 8 Jackson v. Virginia (1979) 443 U.S.307 2.0... ccc cece cece eee een 14 O'Sullivan v. Boerckel (1999) 526 U.S. 838 1.0... cece cee eee cece eee 3 People v. Brown (2010) 182 Cal.App.4th 1354 ........ ccc cee eee 9 People v. Brunner (1983) 145 Cal.App.3d 761 .........0.cceceecees 7 People v. Chakos (2007) 158 Cal.App.4th 357 ........ 10, 11, 12, 13, 14 People v. Delgado (Apr. 29, 2010, B213271)__ Cal.App.4th ___ [2010 Cal.App.Lexis 600]... 2... ccc ce cece cece cece eee e ec eeees eee 9 People v. Doganiere (1978) 86 Cal.App.3d 237 ...........0cceceeee 8 People v. House (2010) 183 Cal.App.4th 1049) ............. cc cee 9 People v. Hunt (1971) 4 Cal.3d 231) 2.0... cc cece cece en cee 10, 11 People v. Landon (Apr. 13, 2010, A123779)___ Cal.App.4th __ [2010 Cal.App.Lexis 517] ...... 0... ccc cee cece reece ence eerste eneee 9 People v. Mower(2002) 28 Cal.4th 457 ........... 000 cence 11, 13, 14 People v. Norton (May 5, 2010, A123659)__ Cal. App.4th __ [2010 Cal.App. Lexis 612] 2.2... cc cece cece nee e cece ee cence 9 People v. Otubuah (May 6, 2010, E047271)__ Cal-App.4th __ [2010 Cal.App. Lexis 622] 2.2... .... cc cee ce cece cece cee c eee tn een ceces 9 People v. Pelayo (May 6,2010, A123042)___Cal.App.4th __ [2010 Cal.App. Lexis 627] 2.2... . ccc cece eee eee e eee t ccc et eee ees 9 ili People v. Rodriguez (2010) 182 Cal.App.4th 535 ...........00 000s 5, 8 People v. Sage (1980) 26 Cal.3d 498 2.0.2... ccc cece eee eee eens 6, 7 STATUTES Health and Safety Codesection 11359 ........... cece eee eee eee 10 Health and Safety Code section 11360 ........... cece cee ween 10 Health and Safety Code section 11362.765 .......... cece ee ee nes 11 Penal Code section 4019 1.1... ccc ccc ccc eee cece 2, 4,5, 7,8 CONSTITUTIONS U.S. Const., Amend. Vio... ccc cc ccc ccc ccc reer ete n cece cece 14 U.S. Const., Amend. XIV... .. ccc cc cece reece wetness 2, 4, 6, 14 Cal. Const., art. [, § 7.2... ccc ccc cece eet e cece ences 2, 4, 6, 14 Cal. Comst., art. 1,§ 15 22... ccc ccc ccc ccc cece eee e cere eenees 14 Cal. Const., art. TV, § 16 22... . ccc ccc ccc cece cece rece nee ecnee 6 RULES OF COURT California Rules of Court, rule 8.500 ................002000- 3, 9,15 California Rules of Court, rule 8.504 .......... 0. ccc cece cece cere 3 iv IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Respondent, v. LEWIS MARCUS DOWL, Petitioner/Appellant. N e e N e N e e r e e N e e N e e ” “ e e ” N e e ” “ n e e ” N e e ” e e ” PETITION FOR REVIEW TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Petitioner, Lewis Marcus Dowl, petitions this court for review following the decision ofthe Court ofAppeal, Fifth Appellate District, filed in that court on April 6, 2010.' A copy ofthe opinion ofthe Court of Appeal is attached hereto as Exhibit “A.” “Petitioner,” Lewis Marcus Dowl, is hereafter referred to as “appellant.” QUESTIONS PRESENTED 1. Whether Penal Code section 4019, as amended on January 25, 2010, which increased presentence credits for certain criminal defendants who,like appellant in the present case, have no currentor past convictionsfor violent or serious felonies, and whoare not required to register as sex offenders, applies retroactively to persons such as appellant whose appeals were not final on review at the time of the amendment and, relatedly, whether prospective application of the amendment limiting it to persons who had not been sentenced at the time the amendment becameeffective violates the right of those persons who had been sentenced prior to the effective date of the amendment but whose appeals were not final on review at the time of the amendmentto equal protection of the law under the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution. 2. Wherethere is no substantial evidence that a police officer has any expertise in differentiating citizens who possess marijuana lawfully for their own consumption from those whopossessit unlawfully with the intenttosell, is the opinion of that officer that a person who possesses a valid medical marijuana card possessed marijuana for the purposes ofsale, sufficient to support convictions for possession ofmarijuanafor sale and for transportation of marijuana? NECESSITY FOR REVIEW As shown with more particularity below, a grant of review and resolution of these issues by this court is necessary to secure unanimity of decision andto settle important questions oflaw pursuant to California Rules ofCourt, rule 8.500 (b)(1) and under this Court’s powerasthis state’s highest court to correct errors below. (See O'Sullivan v. Boerckel (1999) 526 U.S. 838.) PETITION FOR REHEARING STATEMENT Appellant filed a petition for rehearing on April 16, 2010. The petition wasdenied on April 22, 2010. (See Cal. Rules of Court, rule 8.504 (b)(3). STATEMENT OF FACTS For purposesofthis petition, other than the facts cited in the ensuing argument, the facts are adequately recited in the Court ofAppeal's opinion. ARGUMENT I. REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER PENAL CODESECTION 4019, ASAMENDEDONJANUARY25,2010, WHICH INCREASED PRESENTENCE CREDITS FOR CERTAIN CRIMINAL DEFENDANTS WHO HAVE NO CURRENT OR PAST CONVICTIONS FORVIOLENTORSERIOUS FELONIES,ANDWHO ARE NOT REQUIRED TO REGISTER AS SEX OFFENDERS, APPLIES RETROACTIVELY TO PERSONS WHOSE APPEALS WERE NOT FINAL ON REVIEW AT THE TIME OF THE AMENDMENT AND, RELATEDLY, WHETHER PROSPECTIVE APPLICATION OF THEAMENDMENTLIMITING IT TO PERSONS WHO HAD NOT BEEN SENTENCED AT THE TIME THE AMENDMENT BECAMEEFFECTIVE VIOLATES THE RIGHT OF THOSE PERSONS WHO HAD BEEN SENTENCED PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENTBUTWHOSE APPEALS WERE NOT FINAL ON REVIEW AT THE TIME OF THE AMENDMENT TO EQUAL PROTECTION OF THE LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 7 OF THE CALIFORNIA CONSTITUTION. A. Introduction. Former Penal Code section 4019 provided for one day of work credit and one day of conduct credit for each six-day period of custody, resulting in a “one-for-two” award of custody credits. (Former Pen. Code, § 4019, subds. (b) & ©.) As amended effective January 25, 2010, the statute now provides for one day each ofwork time and conduct credit for eachfour-day period in custody, resulting in one-for-one credits. (Pen. Code, § 4019, subds. (b)(1) & (c)(1), as amend.eff. 1/25/10.) The conduct credits in this case were calculated pursuant to Penal Code section 4019,as it existed at the time ofsentencing. (1 CT 175-176.) The trial court awarded appellant presentence credits for time served of 45 days plus 22 days of conduct credit. (Jbid.) If amended Penal Code section 4019 had been foundto be applicable to appellant, he would have been entitled to 45 days of conductcredits. (Pen. Code, § 4019, subds. (b)(1) & (c)(1), as amend.) Pursuant to a standing order issued by the court of appeal on February 11, 2010, the following issues were deemedraised in this appeal: “(1) Under amended Penal Code section 4019, appellant is entitled to recalculation of presentence work and custody credits; (2) To hold otherwise would violate equal protection principles.” In conformity with its opinion in People v. Rodriguez (2010) 182 Cal.App.4th 535, the court of appeal “reject[ed]” any argument defendant is deemed to have madefor additional custodycredits.” (Slip. opn. at p. 16.) B. It Is a Violation of Equal Protection Principles Not to Apply AmendedSection 4019 Retroactively. Appellant contends that the court’s decision not to apply amended section 4019 retroactively to his presentence credit calculation violates his right to equal protection of the law under the Fourteenth Amendmentto the United States Constitution and article I, section 7, and article IV, section 16, of the California Constitution. Moreparticularly, when the Legislature increases credits that reduce a defendant’s sentence, the equal protection clauses of the California and Federal constitutions require that the new law be applied to all defendants who are presently serving a sentence, on parole, or on probation. (In re Kapperman (1974) 11 Cal.3d 542, 546-550; see U.S. Const., Amend. XIV; Cal. Const., art. I, § 7; art. IV, § 16.) In Kapperman, the California Supreme Court considered a 1972 amendmentto Penal Code section 2900.5 that credited countyjail time served before prison to the prison sentence. (Kapperman, supra, 11 Cal.3d at 544.) The amendedstatute made the credit prospective only. (/bid.) The defendant was delivered to the DepartmentofCorrections before the date the statute was enacted, and his conviction wasfinal before it went into effect. Ud. at 545.) The court held that the state constitutional guarantee of equal protection underthe laws requiredthat the full benefit ofthe new pre-sentence credit law be applied retroactively to everyone serving a sentence on March4, 1972, regardless of when they were in the county jail or whether their conviction was final on the day the statute took effect. (Kapperman, supra, 11 Cal.3d at 546-550.) Applied here, the reasoning ofKappermanrequiresthat appellant be afforded the benefit ofretroactive application ofamended section 4019. In People v. Sage (1980) 26 Cal.3d 498, this court again held that equal protection principles require that all prisoners, regardless of the date they began servingprison terms, benefit when anew law orrulingincreasescredits. (Id. at 509, fn. 7.)° Before Sage, Penal Code section 4019’s provision ofcredit for pre-sentence incarceration for prisoners “confined in or committed to a county jail . . . under a judgment of imprisonment” had been interpreted to limit pre-sentence credits to prisoners serving jail terms, and exclude those serving prison terms.(Sage, supra, 26 Cal.3d at 506.) Underthis interpretation defendants convicted of misdemeanors (and therefore sentenced only to jail) received time off their sentences for pre-sentence custody, while defendants convicted of felonies (and therefore sentenced to prison) got no presentence credits. (/d. at 506, 507-508.) The Sage court held that there was no “rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Sage, supra, 26 Cal.3d at 506-508.) Accordingly, the Court held that section 4019 must be construed as providing pre-sentencecredits to all prisoners. (/bid.) Moreover, the Court held that its expansion of the previous application of section 4019 must be applied retroactively. (id. 26 Cal.3d at 509, fn. 7.) It explained: “Inasmuch as the same equal protection Sage was superseded by statute on another issue. (See People v. Brunner (1983) 145 Cal.App.3d 761, 764 and fn. 1.) 7 concernsas those underlying this court's decision in In re Kapperman, supra, 11 Cal.3d 542,i.e., the avoidance ofarbitrary classification of prisoners, are presentin the award ofjail conduct credits, our holding that such credits must be awarded, if earned, for all precommitmentjail time is retroactive.” ([bid.) The Court ofAppeal in People v. Doganiere (1978) 86 Cal.App.3d 237 also held that the equal protection clause commandsretroactive application of an amendmentincreasing credits. (/d. at 239, fn. 1.) It observed: “It would appear to be eminently unfair for a defendant to get 10 years for an offense committed on December 31 and another defendant to get 5 years for the identical offense committed on January 1.” (/bid.) Given that there is no rational basis for distinguishing between a defendant serving time before January 25, 2010 and someoneserving time on that date or later, equal protection requires that amended section 4019 be applied to appellant. C. Review Should be Granted. The foregoingissue has been litigated in the courts of appeal with different districts reaching different conclusions. As noted, in People v. Rodriguez, supra, 182 Cal.App.4th at 540, the Fifth District held the section 4019 amendmentincreasing conduct credits does not apply to defendants sentenced before January 25, 2010. Division two ofthe Fourth District agreed with Rodriguez in People v. Otubuah (modified and published May 6, 2010, E047271) __ Cal.App.4th __ [2010 Cal.App. Lexis 622]. Other courts have reached a contrary conclusion and decided the amendment must be applied retroactively. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354 [3rd Dist.], People v. House (2010) 183 Cal.App.4th 1049 [2nd Dist., Div. 1], People v. Landon (Apr. 13, 2010, A123779) __ Cal.App.4th ____ [2010 Cal.App.Lexis 517], [1st Dist., Div. 2]; People v. Delgado (Apr. 29, 2010, B213271) __Cal.App.4th __ [2010 Cal.App.Lexis 600], [2nd District, Div. 6]; People v. Norton (May 5, 2010, A123659) __ Cal. App.4th __ [2010 Cal.App. Lexis 612], [1st Dist., Div. 3]; and People v. Pelayo (May 6,2010, A123042)__ Cal.App.4th __ [2010 Cal-App. Lexis 627], [1st Dist., Div. 5].) In view of these disparate holdings the court’s decision here presents an important question oflaw. Review should be grantedto settle the question and to secure uniformity of decision. (Cal. Rules of Ct, rule 8.500(b)(1).) Il. REVIEWSHOULDBEGRANTEDTO SECUREUNIFORMITYOF DECISION AND SETTLE AN IMPORTANT QUESTION OF LAW AS TO WHETHER THE OPINION OF A POLICE OFFICER WITH NO EXPERTISE IN DIFFERENTIATING CITIZENS WHO POSSESS MARIJUANA LAWFULLY FOR THEIR OWN CONSUMPTION FROM THOSE WHO POSSESS IT UNLAWFULLY WITH THE INTENT TO SELL, MAY SERVE AS SUBSTANTIAL EVIDENCE SUFFICIENT TO SUPPORT CONVICTIONS FOR POSSESSION OF MARIJUANA FOR SALE AND FOR TRANSPORTATION OF MARIJUANAOFAPERSONWHOPOSSESSESAVALIDMEDICAL MARIJUANA CARD. A. Introduction. Appellant was convicted ofpossession ofmarijuanafor sale in violation of Health and Safety Code section 11359 and transportation of marijuana in violation ofHealth and Safety Code section 11360, subdivision (a). (1 CT 87- 90,160-168.) The case against appellant on the possession charge wasentirely dependent on the purported expert-opinion testimony of Officer Williamson that appellant possessed the marijuana found on his person andin his car for the purposes of sale. Appellant argued that under People v. Hunt (1971) 4 Cal.3d 231 and People v. Chakos (2007) 158 Cal-App.4th 357, Williamson wasnot qualified to offer an opinion as to whethera person, such as appellant, with a valid medical marijuana card possessed marijuana for sale. Accordingly, there was insufficient evidence to support the possessionfor sale conviction. That being so, the transportation conviction was likewise 10 unsupported by substantial evidence. (See Health and Safety Code section 11362.765, subdivision (b)(1).) B. The Court’s Rejection of Chakos Is Based on an Unjustified Extension of the Reasoning in People v. Mower? In People v. Chakos, supra, 158 Cal.App.4th 357, the court was faced with the same issue present here: whether the evidence was sufficient to support a conviction for possession ofmarijuana for sale. (/d. at 363.) There, as here, the sole evidence of possession for sale was the arresting officer’s opinion. (/d. at 361.) The court, relying on People v. Hunt, supra, 4 Cal.3dat 237-238, found the evidence insufficient and reversed, stating, “Nowhere in this record do wefind any substantial evidence thatthe arresting officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption,as distinct from possessing unlawfully with intent to sell.” Ud. at 360.) Since the facts and evidence here do not differ in any meaningful respect from those in Chakos, had Chakos been applied here, appellant would have been entitled to reversal of his convictions. However, the court of appeal here disagreed with the conclusion in Chakos. (Slip. opn. at pp. 4-10.) Relying on People v. Mower, supra, 28 Cal.4th 457,it stated: People v. Mower(2002) 28 Cal.4th 457. 11 [T]he Chakos court did not address the fact the Compassionate Use Act provides an affirmative defense to the cultivation and possession of marijuana, which is otherwise illegal (People v. Mower(2002) 28 Cal.4th 457, 464 (Mower); People v. Kelly (2010) 47 Cal.4th 1008, 1013), and thus we see an important basis for distinguishing Hunt, which did not involve an affirmative defense. In Mower the California Supreme Court applied “the so-called rule of convenience and necessity” to determinethat the burden ofproofas to the facts underlying the compassionate use defense should be allocated to the defendant. (Mower, at p. 477.) (Slip opn.at p. 8, emphasis in original.) After extensively citing Mower, the court here found the Chakos holding was “inconsistent with the nature ofthe affirmative defense under the Compassionate Use Act.” (Slip opn.at p. 9.) It explained: Byessentially requiring the prosecution’s narcotics expert to also qualify as medical marijuana expert in order to opinethat marijuana in a defendant’s possession is possessed for sales, Chakos improperly reallocates the burden of proof on the compassionate use defense to the prosecution contrary to the principles articulate by the Supreme Court in Mower. Under Chakos, it would be exceedingly difficult and inconvenient for a prosecutor to prove what is “reasonably related” to a defendant’s medical needs. (CALJIC No. 12.24.1; see also People v. Wright (2006) 40 Cal.4th 81, 88, 92,fn. 7 [discussing application of compassionate use defense to crime of transportation ofmarijuana].) To our knowledge,police are not generally qualified to assess how much marijuanais needed for a specific medical condition or trained in how to differentiate a quantity of marijuana for medical use and a quantity of marijuanafor sales. (Slip opn. at pp. 9-10.) 12 Based on this reasoning, the court declined to follow Chakos and rejected appellant’s argumentfor reversal. (Slip opn.at p. 10.) Appellant submits that Chakos remains good law andthat the court’s decision here was erroneous. The opinion here correctly observes that Mower “allocate[d] to the defendant the burden of proving the facts underlying... [the Compassionate Use] defense.” (Slip opn. at p. 9; People v. Mower (2002) 28 Cal.4th 457, 477.) Thosefacts are: (1) the defendantis a patient or primary caregiver; (2) the defendant possessed or cultivated the marijuana in question for the personal medical purposes of a patient, and (3) the defendant did so on the recommendation or approvalofa physician. (Ibid.) However, Mowerdid not assign to a defendant the burden ofdisproving the charge that he possessedthe marijuana for sale or for anotherillegal purpose. The court’s decision here purports to extend Mowerby holding that a defendant in possession of marijuana must not only prove the three foundationalfacts but must also provethat he did not possess the marijuana for sale. From that premise,it is opined that an ordinary expert in the unlawfuluse of marijuana, who has no expertise in differentiating citizens who possess marijuana lawfully for their own consumption from those who possessit unlawfully with the intent to sell, is competent to offer an opinion that an 13 amount possessed by a person with a valid medical marijuana card was possessed for sale rather than for a lawful use. (Slip opn. at pp.9-10.) Such an interpretation ofMower and of the Compassionate Use Act violates the due process requirement that the burden is on the prosecution to prove beyond a reasonable doubt every element ofthe offense. (in re Winship (1970) 397 U.S. 358, 361; see Jackson v. Virginia (1979) 443 U.S. 307, 316 [“Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendmentthat no person shall be ... [convicted] except upon sufficient proof - - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt ofthe existence ofevery elementofthe offense.”]; see also U.S. Const., amends. V, XIV; see Cal. Const., art. 1, §§ 7, 15.) Under the holding here, the burden was placed on appellant to prove not only the foundational facts qualifying him orher to assert the Compassionate Use Act as a defense but also to disprovea fact that is was the prosecution’s burden to establish: that the marijuana was possessed for sale. By thus shifting the burden of proof to appellant, the opinion here ran afoul of the due process requirement the prosecution prove every element of the offense beyond a reasonable doubt. The result was a violation ofappellant’s due processrights. 14 C. Review Should Be Granted. It is evident from the foregoing discussion. That the opinionhereis at odds with the holding in Chakos and raises an important question about how Mowershould beinterpreted. Accordingly review should be granted to settle the question and to secure uniformity of decision. (Cal. Rules of Ct, rule 8.500(b)(1).) 15 CONCLUSION For the foregoing reasons, this Court should grant review. Dated: May 10, 2010 espectfully“L Thomas M. Singman Attorney at Law State Bar # 56102 P.O. Box 6237 Albany, CA 94706 16 WORD COUNT CERTIFICATE I, Thomas M.Singman,herebycertify that the word countforthis petition for review is 3,080, which doesnotinclude the cover, tablesorthis certificate, and that this is the word count WordPerfect X4 generated for this document. Dated: May 10, 2010 re"submitted, Thomas M.Singman 17 EXHIBIT A COURT SF APPEAL FIFTH APPELATE DISTRICT FILED APR 06 2010 By Danity CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F057384 Plaintiff and Respondent, (Super. Ct. No. BF125801A) Vv. OPINION LEWIS MARCUS DOWL, Defendant and Appellant. APPEALfrom a judgment of the Superior Court of Kern County. Kenneth C. Twisselman I, Judge. Thomas M. Singman, under appointmentby the Court of Appeal, for Defendant and Appellant. EdmundG.,Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes, Deputy Attorney General, for Plaintiff and Respondent. * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II andIII. -o0000- Rejecting a compassionate use defense, a jury convicted defendant Lewis Marcus Dow!oftransportation of marijuana (Health & Saf. Code,! § 11360, subd.(a); count 1) and possession of marijuana forsale (§ 11359; count 2); however, thejury returned not true findings on the associated gang enhancements (Pen. Code, § 186.22, subd. (b)(1)), and found defendantnot guilty of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count 3). The trial court sentenced defendant to prison fora total of three years. On appeal, defendant contends: (1) insufficient evidence supportshis convictions of transportation of marijuana and possession of marijuanafor sale; and (2) the trial court abusedits discretion and violated his constitutional rights when it refused to bifurcate trial of the gang allegations. We reject defendant’s contentions and affirm the judgment. Wepublish the part of the opinion that holds a police officer need not qualify as a medical marijuana expert in order to render an opinion that marijuana being possessed is possessed forsales in cases where the defendant raises an affirmative defense under California’s Compassionate Use Act of 1996 (hereafter the Compassionate Use Act). (§ 11362.5.) FACTS On November 29, 2008, two police officers stopped defendant for playing loud musicin his car. When Officer Jason Williamson approached defendant’s window, defendant gavethe officer his driver’s license and medical marijuana identification card and told him there was marijuanain the car. A search of defendant andhis car revealed the presence of 66.7 grams (just over two ounces) of marijuana. A single bag, containing 17.2 grams of marijuana, was found I All furtherstatutory references are to the Health and Safety Code unless otherwise indicated. in defendant’s pocket. Ten individual baggies, each containing 3 grams of marijuana, were foundin the driver’s door, and three individual baggies, each containing 6.5 grams of marijuana, were found lying on the backseat. A WD-40 can, with a hidden compartment containing marijuana residue, wasalso found in the car.However, no devices for ingesting marijuana were found in defendant’s car. Officer Williamsontestified, in his expert opinion, that the marijuana found in defendant’s possession was possessed for purposes of sale. Although the 17.2-gram bag of marijuana found in defendant’s pocket “may or maynotbe for [defendant’s] personal use[,]” the location and packaging of the other 13 baggies was consistent with “curb service”sales of illegal drugs. Depending on the quality of the marijuana, the 3-gram baggies found in defendant’s car couldsell on the street for between $5 and $10 each, and the 6.5-gram baggies, could sell for approximately double that. Officer Williamson’s opinion the marijuana was possessed for sale was unaffected by defendant’s possession of a medical marijuana identification card “[b]ecauseofthetotality of the circumstances of what[the officer] saw.” The prosecution also presented the testimony of a gang expert, who opined that defendant was an active memberof the Bloods criminalstreet gang and that the crimesin this case were gang-related. Additional relevant facts are included below in our discussion ofthe bifurcation issue. The defense Defendanttestified on his own behalf and presented medical records to show he sustained a shoulderinjury from a hit-and-run car accident in May 2007. The injury caused him to suffer chronic, throbbing pain. As a result, defendant obtained a medical marijuana identification card from the Bakersfield Health Departmentin July 2008, after being evaluated by a physician. The identification card wasvalid at the time ofhisarrest. Defendantalso had a written recommendation from his physician. Defendant explained that medical marijuana helped to numbthe pain caused by his shoulder injury and also helped him with sleep problemshe had suffered for a long time. He usually consumed his marijuana by smokingit'in cigars. When the police stopped him, he wascarrying a “splitter” on his keychain, whichis a cylindrical object used to split cigars. Defendant denied that he was selling marijuana. The marijuana foundin his possession wasfrom a medical marijuana dispensary in Los Angeles. Defendant wentto Los Angeles because there were no dispensaries in Bakersfield. When he purchased the marijuana from the dispensary, he was required to present his identification card. The marijuana cost him $200, and was packagedin a single bag. After purchasing the marijuana, defendant dividedit into separate baggies. When asked whyhe did this, defendant explained: “I package them in the dosagethat I take on a daily basis andforit to fit in certain areas[,]” including the WD-40 can, which he would use to carry his dosages when we went to work. When asked to explain the presence of multiple baggies of marijuanain the driver’s door and the three baggies in the backseat, defendanttestified: “I was in a rush, and I just threw them in the car.” DISCUSSION L. Sufficiency ofthe Evidence Defendant contends the evidenceis insufficient to support his conviction ofeither possession of marijuanafor sale or transportation of marijuana because, although Officer Williamson was undisputedly qualified as an expert on unlawful marijuanasales, the record lacks “substantial evidence that the arresting officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption, as distinct from possessing unlawfully with intent to sell. [Citation.]” (People v. Chakos (2007) 158 Cal.App.4th 357, 360 (Chakos), citing People v. Hunt (1971) 4 Cal.3d 231, 237-238 (Hunt).) For reasons discussed below, we respectfully disagree with the conclusion of the court of appeal in Chakos, and conclude Officer Williamson was not 4. required to additionally qualify as a medical marijuana expert in orderto render a valid opinion that the marijuana found in defendant’s possession was possessedforsales simply because defendant presented some evidenceraising a compassionate use defense.” On appeal, we review the entire record to determine whetheritcontains evidence that is reasonable, credible andof solid value onthe basis of which anyrationaltrier of fact could have found appellant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We view the evidencein the light most favorable to the judgment and presumein support of the judgment every fact the trier could reasonably deduce and infer from the evidence. (/bid.) Transportation of marijuana is committed “‘by carrying or conveying a usable quantity of a controlled substance with knowledge ofits presence and illegal character.’ [Citation.] ... [Citation.] ‘The crux ofthe crimeoftransporting is movementofthe contraband from oneplace to another.’ [Citation.] The term ‘transports’ as used in the statute is “commonly understood and of a plain, nontechnical meaning.’ [Citation.]” (People v. LaCross (2001) 91 Cal.App.4th 182, 185; People v. Emmal (1998) 68 2 The trial court instructed the jury with CALJIC No. 12.24.1 on the compassionate use defense as follows: “The possession or transportation of marijuana is not unlawful when theacts of defendant are authorized by law for compassionate use. The possession ortransportation of marijuanais lawful (1) where its medical use is deemed appropriate and has been recommended or approved,orally or in writing, by a physician; (2) the physician has determined that the person’s health would benefit from the use of marijuanain the treatment of cancer, anorexia, AIDS,chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana providesrelief; (3) the marijuana possessed or transported wasfor the personal medicaluse ofthe patient; and (4) the quantity of marijuana possessedor transported and the form in whichit was possessed or transported were reasonablyrelatedto the patient’s then current medical needs, not exceeding eight ouncesofdried marijuanaper qualified patient. [] To establish the defense of compassionate use, the burden is upon the defendantto raise a reasonable doubtas to guilt of the unlawful possession or transportation of marijuana.” Cal.App.4th 1313, 1318 [“to satisfy the element of ‘transportation’ ..., the evidence need only show that the vehicle was moved while under the defendant’s control!”’].) “The essential elements of unlawful possession of [marijuana] are ‘dominion and control of the substance in a quantity usable for consumption or sale,with knowledge of its presence andofits restricted dangerous drug character. Each of these elements may be established circumstantially.’ [Citations.]” (People v. Martin (2001) 25 Cal.4th 1180, 1184.) “In cases involving possession of marijuana or heroin, experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normaluse ofan individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]” (People v. Newman (1971) 5 Cal.3d 48, 53 (Newman), disapproved on another point in People v. Daniels (1975) 14 Cal. 3d 857, 862.) “[A]s to drugs which maybe purchased by prescription, [however,] an officer’s opinion that possession of lawfully prescribed drugs is for purposesofsale is worthy oflittle or no weight in the absence of evidence of some circumstancesnot to be expected in connection with a patient lawfully using the drugs as medicine. [Citation.]” (Newman, supra, at p. 53, citing Hunt, supra, 4 Cal.3d at pp. 237- 238.) | In Hunt, supra, 4 Cal.3d 231, the California Supreme Court found the expert testimonyofa police officer insufficient to support a conviction of possession for sale of restricted dangerous drugsin violation of section 11911. The officer found Hunt in a bedroom injecting himself with methedrine. At Hunt’s feet was a travel case containing three full and one partially full 30 cubic centimeter vials of methedrine, each of which was labeled with a pharmacylabel listing Hunt’s name and a physician’s name. The case also contained disposable syringes and needles. (4 Cal.3d at pp. 233-234.) The parties stipulated that Hunt obtainedall of the methedrine in his possession pursuant to a prescription, and Hunt’s physician testified he had prescribed methedrine to Hunt. (/d. at pp. 234-235 & fn. 2.) Theofficer testified that users of methedrineuse upto eight cubic centimeters per day. Based upon the quantity of methedrine Huntpossessed, its value for illegal street sales, and the quantity normally used byan individual, the officer opined that Hunt possessed the methedrine for sale. (/d. at pp. 234-235.) Hunttestified that he used aboutnine cubic centimeters of methedrine per day, andthe vials seized from him constituted his personal supply for about one week. (/d. at p. 235.) The Supreme Court foundthe officer’s opinion carriedlittle or no weight because he had insufficient expertise regarding the lawful possession of methedrine for medical use: “As to drugs, which may be purchasedby 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 their own use as medicine for illness. [§]] In the absence of evidence of some circumstancesnot to be expected in connection with a patient lawfully using the drugs as medicine, an officer’s opinion that possession of lawfully prescribed drugs is for purposesofsale is worthyoflittle or no weight and should not constitute substantial evidence sufficient to sustain the conviction. No suchspecial circumstances were shownhereas to the methedrine in the blue and white travel case. [{]] The officer stated that his opinion that the methedrine was held for sale was based on ‘the quantity involved, the over-all street value, the normaluse by an individual.’ Under his own testimony, the use by an individual could be up to 8 ccs. a day. The quantity in the blue and white travel case was less than 120 ccs. and could have beenaslittle as a two- week supply. The street value seems immaterial. The fact that medicine purchased lawfully at reasonable prices may demand a muchgreaterprice in the illegal market furnishes no reason to supposethat a possession of a two-weeksupply of the drug pursuant to prescription is held for profit rather than use.” (Hunt, supra, 4 Cal.3d at pp. 237-238.) In Chakos, police stopped Chakos’s car and found plastic bag containing seven grams(a little less than one-quarter ounce) of marijuana, a physician’s “medical slip” for marijuana use, and $781 in cash. (Chakos, supra, 158 Cal.App.4th at p. 360.) During a search of Chakos’s home,officers founda little less than six ounces of marijuana, stored 29 Geein “irregular amounts” “in different storage devices”; a gram scale; a closed circuit cameratrained on the entrance; and 99 empty plastic bags described by thepolice officer expert witness as ‘“‘phlebotomy bags.”” (Chakos was a phlebotomist.) (/d. at pp. 360- 361 & fn. 2.) The police officer expert had extensive narcotics training and experience, includingtraining regarding growing, selling, and packaging marijuana.. But he had no prior experience, and apparently no training, with respect to medical marijuana. (/d. at pp. 361-362.) The officer opined that Chakos possessedall of the marijuanaforthe purposeofsale. As the basis for his opinion,the officer cited the money and the quantity of marijuana found in the car, which wasconsistent with the amounta dealer wouldsell to auser. Other factors were the surveillance system, scale, and packaging material found at Chakos’s residence. (/bid.) The Chakos court found no basis for distinguishing Hunt. It concluded that “expertise in distinguishing lawful patterns of possession from unlawful patterns of holding for sale” was necessary (Chakos, supra, 158 Cal.App.4th at p. 367), and the police officer expert was no “more familiar than the average layperson or the membersof this court with the patterns oflawful possessionfor medicinal use that would allow him to differentiate them from unlawful possessionforsale.” (/d. at pp. 368-369.) Accordingly, the court found the expert was “unqualified to render an expert opinion in this case,” and concludedthat the evidence wasinsufficient to support Chakos’s conviction of possessing marijuanafor the purposeofsale. (/d. at p. 369.) In its discussion, the Chakos court did not address the fact the Compassionate Use Act provides an affirmative defense to the cultivation and possession of marijuana, which is otherwise illegal (People v. Mower (2002) 28 Cal.4th 457, 464 (Mower); People v. Kelly (2010) 47 Cal.4th 1008, 1013), and thus we see an importantbasis for distinguishing Hunt, which did not involve an affirmative defense. In Mowerthe California Supreme Court applied “the so-called rule of convenience and necessity”to determinethat the burden ofproofas to the facts underlying the compassionate use defense should be allocatedto the defendant. (Mower, at p. 477.) The court explained: “The rule of convenience and necessity declares that, unlessit is ‘unduly harsh or unfair,’ the ‘burden of proving an exonerating fact may be imposed on a defendantif its existence is “peculiarly” within his personal knowledge and proofofits nonexistence by the prosecution would be relatively difficult or inconvenient.’ [Citations.] ... [Citations.] “Application of the rule of convenience and necessity supports the conclusion that section 11362.5(d) [the Compassionate Use Act] should be interpreted to allocate to the defendant the burden of proofas to the facts underlying the defense provided bythestatute. “First, it would not be unduly harsh or unfair to allocate to the defendant the burden of proving the facts underlying this defense. These facts are that he or she wasa ‘patient’ or ‘primary caregiver,’ that he or she ‘possesse[d]’ or ‘cultivate[d]’ the ‘marijuana’ in question ‘for the personal medical purposesof[a] patient,’ and that he or she did so on the ‘recommendation or approval of a physician’ [citation]. The existence of these facts is peculiarly within a defendant’s personal knowledge, and proof of their nonexistence by the prosecution would berelatively difficult or inconvenient. “Second, section 11362.5(d) constitutes an exception to sections 11357 and 11358, which makeit a crime to possess and cultivate marijuana, because section 11362.5(d) provides that sections 11357 and 11358 ‘shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposesofthe patient upon the written or oral recommendation or approval of a physician’ [citation].” (Mower, supra, 28 Cal.4th at p. 477.) Wefind the holding of Chakosto be inconsistent with the nature of the affirmative defense under the Compassionate Use Act. Byessentially requiring the prosecution’s narcotics expert to also qualify as medical marijuana expert in order to opine that marijuana in a defendant’s possession is possessed for sales, Chakos improperly reallocates the burden of proof on the compassionate use defense to the prosecution contrary to the principles articulate by the Supreme Court in Mower. Under Chakos,it would be exceedingly difficult and inconvenient for a prosecutor to prove whatis “reasonably related” to a defendant’s medical needs. (CALJIC No. 12.24.1; see also People v. Wright (2006) 40 Cal.4th 81, 88, 92, fn. 7 [discussing application of compassionate use defense to crime oftransportation of marijuana].) To our knowledge, police are not generally qualified to assess how much marijuanais needed for a specific medical condition or trained in how to differentiate a quantity of marijuana for medical use and a quantity of marijuanaforsales. a For the forgoing reasons, we decline to follow Chakos, and concludethat the presence of the marijuana in defendant’s car, combined with Officer Williamson’s expert opinion that the circumstances of defendant’s possession were consistent with unlawful sales, constituted substantial evidence supporting defendant’s convictions for transporting and possessing marijuanaforsales. I. Failure to Bifurcate the Gang Allegations Defendant contends the court abusedits discretion and violated his constitutional rights to due process anda fair jury trial whenit refused to bifurcate trial of the gang allegations. Wedisagree. A, Background Priorto trial, defendantfiled a motion to bifurcate the special gang allegations from the underlying offenses. During the hearing on the motion, defendant expandedits scope to include not only the gang enhancements associated with counts | and 2, but also the substantive gang offense charged in count 3. In support of the bifurcation motion, defendantargued generally that the introduction of gang evidence would be “unduly prejudicial.]” Heassertedthe issue at trial would be whether“he was possessing this for sale” and urgedthat this issue “should betried cleanly and without all that prejudicial gang stuff.” In opposition, the prosecutor pointed out that the gang allegations and drug offenses were “interrelated” because defendant had been charged with transporting and possessing the marijuanafor sale “in furtherance of or in benefit of the gang.” In denying defendant’s motion, the trial court made the following observations: “T have read and considered, asI said, the written points in support of--the points and authorities in support of the written motion and considered the 10. oral arguments of counsel. [§] And the Court does recognize that there is the potential for prejudice if the jury hears allegations of criminal street gang membership or association. However, the cases that counsel have cited that talk about this prejudice with regard to criminal street gangs--I am looking [as one example] at [People v. Perez (1981) 114 Cal.App.3d 470], a 1981 case.... [§] ... [§] [T]he Court is going to make the observation that the Court considers the subject ofthe prejudicial effect of gang membership or criminal street gang association in light oftoday’s world as opposed to the world that existed when someofthe prior appellate decisions were rendered. [§] And it has been my experience,trying cases involving allegations of criminal street gang association or membership, that the jury panels are increasingly sophisticated with regard to understanding that there are stereotypes involving criminalstreet gangs, understanding that just because people live in an area where criminalstreet gangs operate does notdirectly lead to a finding that that person is a criminal street gang member;that there are family connections that people associate with each other becausetheyare related or neighbors rather than motivated to be associated with and taking part and actively involvedin the activities of the criminalstreet gang. []] So I do think that the potential for prejudice in Kern County has lessened in the past several years in terms of potential jurors being more informedto not have this type of evidence be as inflammatory as it was in years prior. [J] And I have considered the factors to be considered in deciding whether to bifurcate. Consideringall those factors, I do not find that the admission of evidence related to criminal street gangs is going to be prejudicial to the point that it would require bifurcation. I do not find that the evidence ofthese allegationsis unusually likely to inflame the jury against the defendant. And I do find that the evidencerelating to criminal street gangs is cross-admissible as to all three counts. And the motion to bifurcate is denied.” (Italics added.) Attrial, the parties stipulated that the Bloods was an ongoing criminal street gang within the meaning of the gang enhancementstatute. The prosecution presented the testimony of gang expert Officer Scott Drewry. Officer Drewry opined that defendant was an active memberofthe Bloods and that the possession and transportation of the marijuana in this case was “donein the furtherance or association of the Bloods criminal street gang.” Officer Drewry explained that “narcotics sales” was the gang’s “primary money-makingactivity.” 11. Officer Drewry based his opinion that defendant was an active memberof the Bloods gang on a numberoffactors. At the time of his arrest, defendant was wearing a cap with the letter “B” on it, and he had on his right forearm a tattoo of the number“23.” Officer Drewry explainedthat the tattoo represented the 23d letter of the alphabet (or “W”’), which signified his association with the “Warlord Bloods.” Officer Drewry also noted that officers had found pictures on defendant’s cell phone, depicting defendant making gang-related handsigns. Officer Drewry reviewed four police reports from the Bakersfield Police Departmentdetailing police contacts with defendant. In February 2005, defendant was found in possession of a loaded .357-caliber handgun. Heresisted arrest and was subsequently booked for possessing a weapon andresisting arrest. In August 2006, defendant wasarrested for a curfew violation, when he wasin the companyofanother Bloods gang member. In September 2007, defendant wasstopped for a vehicle code violation and was found in the companyoftwo other Bloods gang members. All three were subsequently arrested for possessing marijuana for sales. The fourth police report Officer Drewry reviewed was the one generated in the current case. In addition to the police reports, Officer Drewry reviewed jail booking information which showedthat on a numberof occasions defendant claimed to be a Bloods gang memberand asked to be separated from Crips gang members. Asnoted above,the jury acquitted defendant of the substantive gang offense and returned nottrue findings on the gang enhancements. B. Analysis Wereview the denial of a motion to bifurcate the trial of a gang enhancement from thetrial of the associated offense for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Hernandez held the legal basis for bifurcation of a prior conviction allegation also permits bifurcation of a gang allegation. (Id. at p. 1049.) However, “the criminal street gang enhancementis attached to the 12. charged offense andis, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (/d. at p. 1048.) Hernandez noted gang evidence may berelevant to “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinentto guilt of the charged crime.” (Hernandez, supra, 33 Cal.4th at p. 1049.) “To the extent the evidence supporting the gang enhancement would be admissible ata trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.) However, “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissibleata trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Codesection 352 as unduly prejudicial when no gang enhancementis charged —a court maystill deny bifurcation.” (/d. at p. 1050.) Noting the benefits of unitary trials, Hernandez explained a “trial court’s discretion to deny bifurcation of a charged gang enhancementis ... broader than its discretion to admit gang evidence when the gang enhancementis not charged.” (Hernandez, supra, 33 Cal.4th at p. 1050.) Bifurcation is required only where a eedefendant can “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]” (/d. at p. 1051.) The propriety ofthe trial court’s ruling is judged by the record asit existed when the bifurcation motion was made. (People v. Catlin (2001) 26 Cal.4th 81, 110 [severance of counts].) On the record before us, we cannotsaythe trial court abused its broad discretion in denying the motionto bifurcate the gang allegations. Although the jury ultimately rejected the prosecution’s gang theory, Officer Drewry testified at the preliminary hearing to his opinion that defendant was“an active gang” memberand, assuming hypothetically the circumstancesofthis case, “that person ... was involved in narcotics activity for the furtherance of the Bloods criminalstreet gang,” noting, as he did 13. at trial, “marijuana and drugsales are one of the primary money-makingactivities of the Blood criminal street gang.” Thus, contrary to defendant’s assertions, it appears much of the gang evidence would have been admissible on the issues of motive and intentin separate trials. (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) Moreover, defendant did not cite to any specific evidence, either in his moving papers or his argumentatthe hearing, to support his burdenofestablishing a substantial danger of prejudice requiring separate trials of the drug counts and gangallegations. Wealso reject defendant’s assertion that the trial court “abusedits discretion ... by relying on its subjective perception and opinion regarding the potential for prejudice to a criminal defendant from admission of gang evidence rather than being guided by established case law.” Defendant’s argumentis based on thetrial court’s observation that it was considering “the subject of the prejudicial effect of gang membershipor criminal street gang association in light of today’s world as opposedto the world that existed when someofthe prior appellate decisions were rendered.” Wenote the court was speaking in general terms, and since defendantdid not offer any specific evidencefor the court to consider, we are not willing to find that the court abused its discretion and ignored the law based onits observations about how jurors’ perceptions about gangs had changed in the nearly 30 decadessincethe earliest cases cited by defendant. In any event, the court took pains to point out it had “considered the factors to be considered in deciding whetherto bifurcate.” The language used bythe court in its concluding commentsreflect it was well aware of the applicable legal principles and properly applied them here to deny defendant’s bifurcation motion. Finally, any error in failing to bifurcatetrial of the gang allegations was not prejudicial under any harmlesserror standard of review. (See Chapmanv. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Contrary to defendant’s argument, the evidence presented against him with regard to the drug offenses was overwhelming. Despite having a medical marijuanaidentification card, the 14, validity of which wasnot challenged by the prosecution, defendantfailed to offer any plausible explanation why his medical condition madeit necessary for him to drive around with 13 separate baggies filled with exact portions of marijuana in the driver’s door and backseat of his car. Although defendant claimed he divided-the marijuanainto separate dosagesfor his personal use, he provided no explanation as to why he was transporting all these personal dosages at the sametimein his car. On cross-examination, he claimed he used two 3-gram baggies per day, one in the morning, and oneat night. It does not take an expert to note the considerable discrepancy in defendant’s claimed daily use and the amount he wascarrying at the time of his arrest. By defendant’s own admission, he was carrying over a week’s supply of marijuanain his car but gave no reason for doing so. Although defendanttestified he had purchased the marijuana in Los Angeles, he did not claim he wasreturning from Los Angelesat the time ofthe traffic stop. In addition, defendant’s claim that he just hurriedly threw the baggies of marijuana into his car is contradicted by the circumstancethat the baggies reflected some degree of organization, as only 3-gram baggies were foundin the driver’s side door, and 6.5-gram baggies were found the backseat. The lack of prejudice is further evidenced by the jury’s finding that the gang enhancements werenottrue and its acquittal of defendant on the substantive gang count. To the extent the gang evidence exposedthe jury to information that defendant had previously been arrested for possession of marijuanaforsales, the jury would have learned ofthis information in any event because defendant chose totestify. Defendant disclosed in his own testimonythat he entered plea to the crime of possession of marijuana for sales and discussed the circumstances ofthe crime, claiming he was innocent butfelt pressured to take the rap for someone else. The jury wasalso duly instructed that the fact of defendant’s prior conviction “may be considered by you only for the purpose of determining the believability of that witness.” (CALJIC No. 2.23) In 15. light ofall these circumstances, we find unconvincing defendant’s argumentthat he was prejudiced by the court’s failure to bifurcate the trial of the gang allegations. I. Penal Code Section 4019 Amendments Pursuant to a standing order ofthis court issued on February 11,-2010,the issue of the applicability of the January 25, 2010, amendments to Penal Codesection 4019 (Stats. 2009-2010, 3d Ex. Sess, ch. 28, § 50) is deemed raised without further briefing by the parties. The amendmentsto Penal Code section 4019 affected the calculation of custody credits. In our published opinion in People v. Rodriguez 182 Cal.App.4th 535, we held the January 25, 2010, amendments to Penal Codesection 4019 applied prospectively only to those persons who hadnot been sentencedat the time the amendments went into effect. (Rodriguez, at pp. 539-540, 544-545.) We also rejected the contention that prospective application of the amendmentsviolated equal protection. (/d. at pp. 546-547.) We thus reject any argument defendant is deemed to have made for additional custody credits. DISPOSITION HILL,J. The judgmentis affirmed. WE CONCUR: et LEVY, Aéting P.J. bal CORNELL,J. 16. DECLARATION OF SERVICE BY MAIL I, Thomas M.Singman, declare that I am over 18 years of age and not a party to the within cause; my business address is P.O. Box 6237, Albany, CA 94706-0237. On May11, 2010, I served a true copy of the attached PETITION FOR REVIEW oneach of the following, by placing same in an envelope addressedas follows: Edmund G. Brown,Jr. Attorney General State of California P.O. Box 944255 Sacramento, CA 94244-2550 Central California Appellate Program Attn: E. Katherine Dashiell 2407 J Street, Suite 301 Sacramento, CA 95816 Kern County Superior Court Attn. Hon. Kenneth C. Twisselman II 1415 Truxtun Avenue 4 Floor Bakersfield, CA 93301 Mr. Lewis Marcus Dowl G-55836 IronwoodState Prison P.O. Box 2229 Blythe, CA 92226 Kern County District Attorney 1215 Truxtun Avenue 4" Floor Bakersfield, CA 93301 Clerk of the Court Court ofAppeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 Each said envelope was then sealed and deposited in the United States mail at Albany, California, in the county in which I am employed, with the postage thereon fully prepaid. I declare underpenalty ofperjury ofthe lawsofthe State ofCalifornia that the foregoing is true and correct. Executed on May 11, 2010, at Albany, California. Thomas M.Singman
