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People v. Lam10/30/2003
Defendant was charged with sale of marijuana. He argues there was sufficient evidence to support a jury instruction on the lesser included crime of possession of marijuana. We agree the trial court erred in not instructing on the lesser included crime, but conclude defendant was not prejudiced by the error since, under the state of the evidence, it is likely the result would have been the same.
Defendant claims the trial court also erred in responding to a question submitted by the jury. We decide the court properly exercised its discretion in declining to assist the jury in making a factual determination.
Lastly, defendant asserts there was insufficient evidence to support his conviction for sale of marijuana. We disagree and find there is substantial evidence to support this conviction. We affirm.
I. FACTS
Kwok Ho Wong, a student at "Irvine Community College," testified he had known defendant for a couple of months, when on September 7, 2001, Wong was arrested by officers from the Irvine Police Department for selling marijuana. He said the police gave him no specific promises but wanted the name of someone else involved with illegal drug activity. An hour after his arrest, Wong telephoned defendant from the police station, and ordered "two O's of homework," code for two ounces of marijuana. They agreed on a purchase location. At the agreed spot, a gas station, defendant delivered two baggies of a green substance, later stipulated to be marijuana, and Wong gave defendant $440. Defendant went on his way, and Wong gave an Irvine Police Department detective the marijuana. Wong later pled guilty to a felony charge, and served one day in jail.
Irvine Narcotics Officer Frank Anderson was present when Wong telephoned defendant from the police department. The conversation was recorded. Wong was wired to record sound before he went to meet defendant. He was given $440 by the police after the bills had been recorded. Anderson testified he searches his informants and their vehicles before he uses them, to assure there are no drugs present. He followed Wong to the purchase location. While the transaction took place at the gas station, Anderson was at the next pump, 15 or 20 feet away, washing his windshield. Anderson saw defendant enter Wong's car, and stay for two or three minutes, but heard nothing but static from the recorder. After defendant drove away, Anderson obtained the marijuana from Wong. Anderson then joined a surveillance team following defendant from the purchase site.
Defendant drove to Irvine and got out of his car at a coffee house, known to be a narcotics transaction location, where he met with people for several minutes, and then got back in his car. Defendant was later stopped for a traffic violation. The $440 given to Wong by the police was found on defendant, as well as an additional $980. Anderson called the telephone number used earlier by Wong, and defendant's cell phone rang. The police confiscated a baggy from defendant's backpack containing a white substance, which substance was stipulated to be 296 milligrams and contained methamphetamine, as well as 6.9 grams of a very high grade of marijuana. Anderson opined that, based on the purchase by Wong and the "suspicious activity" at the Irvine location, the marijuana possessed by defendant was for sale, not personal use.
While on direct examination, Wong said he had sold marijuana a couple of times in the past, he changed his story on cross-examination. He admitted to selling more than ten times in September, between 10 and 30 in August and no more than 30 times in July.
Defendant testified. His story was that he smoked marijuana, but did
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