Defendant and appellant Solomon Abyabwi Gabriel appeals from his conviction of cultivation and possession of marijuana, and other offenses. He contends that the trial court erroneously admitted evidence of prior convictions for purposes of impeachment, and argues that without the evidence, there was a reasonable probability that the jury would have believed his testimony. We reject defendant’s contentions and affirm the judgment.
BACKGROUND
1. Procedural Background
Defendant was charged by information as follows: cultivating marijuana in violation of Health & Safety Code section 11358 (count 1); possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 2); receiving stolen property in violation of Penal Code section 496, subdivision (a) (count 3);
A jury found defendant guilty on all counts as charged except count 2. As to count 2, the jury found defendant guilty of the lesser included offense of possession of more than 28.5 grams of marijuana in violation Health and Safety Code section 11357, subdivision (c). After a bifurcated trial on the special allegation that defendant was free of custody on bail at the time of the offense, the jury found the allegation true as to counts 1,3, and 4.
The trial court sentenced defendant to a total of four years in prison as to counts 1, 3, and 4, which was comprised of one-third the middle term of eight months as to each such count, running consecutively to the sentence imposed in Los Angeles Superior Court case No. MA038664, plus a two-year enhancement under former section 12022.1. As to each of counts 2, 5, and 6, the trial court imposed six months in jail and stayed each term pursuant to section 654. The court imposed mandatory fines and fees and awarded defendant no presentence credit. Defendant filed a timely notice of appeal.
On July 29, 2009, Los Angeles Sheriff’s deputies conducted surveillance with binoculars on defendant’s rural property, and observed 17 growing marijuana plants. When defendant attempted to drive away from the property, several sheriff’s cars blocked his way. The deputies detained defendant and searched his property.
The property was a fenced yard with a motor home, two large Connex trailers used for storage, numerous cars and trailers, a trampoline, and a planted area containing the marijuana plants. As a result of their search, deputies found dozens of tools, including a floor sander, a burglar’s tool kit, and a “slim jim” tool for entering locked vehicles. The serial number of the floor sander had been scratched off and several stickers had been removed from it. Some of the tools were marked “E-Home Control” and bore phone numbers and the name McDugald. In the motor home, deputies found two boxes of live .22-caliber ammunition, envelopes addressed to defendant, and two books with defendant’s name on them.
Sergeant Mark Machanic interviewed defendant after his arrest. Sergeant Machanic testified that defendant, who did not appear to be under the influence of marijuana during the interview, said he was growing the marijuana for medical purposes and claimed to have a doctor’s note allowing him to possess eight ounces of cured marijuana, six mature plants, or 12 seedlings. When told that he had exceeded the limit, defendant denied there were more than six mature plants but admitted that he was the only person cultivating the plants and that they were all his. Defendant denied selling marijuana, but claimed that he gave some of it to friends without charge.
Defendant told Sergeant Machanic that he had purchased many of the tools from The Home Depot and other home improvement stores; that many had belonged to his deceased grandfather; and that he was storing some of the tools for friends. Defendant claimed he had receipts, but a later search in areas indicated by defendant turned up none. Defendant claimed that he had bought the floor sander new from a distributor for $400, but Sergeant Machanic researched the value and determined that the machine sold new for $2,800. When Sergeant Machanic asked defendant about the E-Home Control tools, defendant said that he had no idea where they had come from and that someone must have stored them on his property, but he would not identify them or provide contact information. Deputies had found a go-kart, a motorcycle, and a bicycle on the property. Defendant told Sergeant Machanic that
Michael McDugald (McDugald) testified that he was the sole proprietor of eHomeControl.com, which sold custom residential electronics. He identified as his the tools that had been seized on defendant’s property which bore his company’s name. McDugald testified that the tools had been stolen in 2008 from a company automobile, which had been entered by means of a broken window. He replaced the tools at a cost of $2,800.
Sergeant Machanic testified as the prosecution’s expert in possession of marijuana for sale and gave his opinion that defendant possessed the marijuana for sale. Sergeant Machanic had been with the other deputies at defendant’s property the day of his arrest and had observed the items seized, but saw no sign that defendant was using the marijuana personally. He saw no pipes, smoking papers, or paraphernalia for marijuana consumption.
3. Defendant’s Testimony
Defendant testified that he was the only person cultivating marijuana on his property, and he denied selling it or bartering it. He claimed that he used marijuana to treat his headaches and that he was entitled to do so. Defendant acknowledged that all the seized tools belonged to him. He testified that he had bought the floor sander at a swap meet and claimed that he had never seen the tools belonging to McDugald. Defendant denied removing serial numbers from any property, denied having seen the burglar’s tools before, and claimed that he did not keep ammunition. He denied he was unemployed at the time of his arrest. Defendant owned his own construction company, and before that, he had been employed by various other construction companies.
Defendant called no other witnesses.
DISCUSSION
I. Impeachment with Prior Conviction
Defendant contends that the trial court erred in allowing the prosecution to impeach defendant’s credibility with evidence of his prior convictions for possession of an assault weapon and cultivation of marijuana. Defendant argues that neither offense was a crime of moral turpitude.
Subject to the trial court’s discretion under Evidence Code section 352, California Constitution, article I, section 28, subdivision (f), “authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty. On the other hand, subdivision (d), as well as due process, forbids the use of convictions of felonies which do not necessarily involve moral turpitude.” (People v. Castro (1985)
A. Possession of an assault weapon
Neither defendant nor respondent has found authority holding that possession of an assault weapon is a crime of moral turpitude, and our own research has revealed none. In finding a violation of former section 12280, subdivision (b), to be a crime of moral turpitude, the trial court relied on a
Defendant argues that a violation of former section 12280, subdivision (b), cannot be a crime of moral turpitude because the least adjudicated mens rea would be criminal negligence. Defendant relies on In re Jorge M. (2000)
The trial court’s conclusion finds greater support in People v. Garrett (1987)
In the Roberti-Roos Assault Weapons Control Act of 1989 (the Act), which included section 12280 (the act is now found at § 30500 et seq.), the Legislature found and declared that each assault firearm “poses a threat to the health, safety, and security of all citizens of this state [and] has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.” (Former § 12275.5, subd. (a).) The Act defined “assault weapons” as specific types of semiautomatic weapons, listing them by manufacturer and model. (Former § 12276; see also former § 12276.5, subd. (a).) The Legislature expressly declared that its intent was
Although former section 12280 was not intended to be a strict liability offense, it may be violated by criminal negligence. (In re Jorge M., supra, 23 Cal.4th at pp. 884—887.) Possession of an assault weapon is a serious crime, punishable by either up to one year of imprisonment in jail or state prison. (Former § 12280, subds. (a), (b).)
Defendant’s conviction of this charge required, at the least, that he was in knowing possession of a weapon with the characteristics that made it an assault weapon and as such made it particularly dangerous to human life. (Former § 12280, subd. (b); see In re Jorge M., supra,
B. Cultivation of marijuana
Defendant contends that the trial court erred in allowing the prosecution to impeach his testimony with his former conviction under Health and Safety Code section 11358, unlawful planting or cultivation of marijuana. Defendant argues that because the least adjudicated element of the offense is the cultivation or processing of any amount of marijuana, and thus could be as little as necessary for personal use, a violation of Health and Safety Code section 11358 is comparable to simple possession of marijuana, which is not a crime of moral turpitude. (See Castro, supra,
The question here is whether simple cultivation of marijuana is necessarily an act involving moral turpitude. Again, neither party nor we have found authority directly on that point; however, we find respondent’s analysis compelling. The possession or transportation of less than 28.5 grams of
To illustrate this point, respondent cites People v. Rogers (1971)
Crimes related to trafficking involve moral turpitude. (See, e.g., Castro, supra,
II. No Prejudice
We have concluded that the admission of defendant’s prior convictions was not error, as both offenses were crimes of moral turpitude. We also
Defendant contends that without evidence of the two convictions and the prosecutor’s argument that the cultivation offense was the “same thing,” the jury might have believed his compassionate use defense. (See Health & Saf. Code, § 11362.5, subd. (d).) Defendant also argues that without the two convictions, the jury might have believed his disclaimer of knowledge of stolen tools or destroyed serial numbers.
Defendant argues that this was a close case, as demonstrated by the jury’s nearly five hours of deliberation and quick verdict after further instruction on intent. We disagree. It was not a close case. Defendant admitted that the marijuana plants were his. It was defendant’s burden to produce evidence of a doctor’s recommendation that he use marijuana medicinally. (People v. Mower (2002)
Nor was this a close case with regard to the stolen tools or destroyed serial numbers. Defendant acknowledged that all the tools on the premises were his and that he was selective about things stored by others on his property, but then disclaimed any knowledge of the stolen tools or the burglar tools. Defendant claimed to have receipts for the generators, a rototiller, saws, and sprayers, but claimed he could not produce them because the police took them. Defendant admitted grinding down the top of the generator handle,
Moreover, defendant’s overall testimony did not inspire confidence in his credibility. In direct contradiction to the testimony of three witnesses, defendant claimed there were only eight marijuana plants. In addition, defendant provided contradictory testimony, first that the floor sander had labels, then that it had no labels, that it should have had serial numbers on the side, and that the prosecutor was referring to the wrong part of the machine. Defendant denied removing the serial numbers from the sander, and testified the sanded area was in that condition when he bought the machine. Defendant then stated that Sergeant Machanic was incorrect in testifying that the sanded area was where the serial numbers should have been, because there was still a serial number on the machine. Defendant added, “I don’t know what he said. I’m telling you, there’s no serial number.” Defendant later testified again that the serial number was on the side of the sander, but there was no photograph showing it. When defendant was shown the photograph of another tool with a number beginning “K-4” and asked whether that was a serial number, defendant evasively replied that it could be anything; that it could be a birthday.
The ammunition was found with envelopes addressed to defendant and two books with defendant’s name on them. Defendant admitted to Sergeant Machanic that the ammunition belonged to him, explaining that it was for firearms he no longer had. In his testimony, however, defendant denied that Sergeant Machanic had asked him about the ammunition. When asked whether he was aware on July 29 that he was not allowed to have ammunition, defendant refused to answer, invoking the Fifth Amendment. When the trial court explained he had no such right and ordered him to answer, he said, “Not at the time, no.” When asked whether a judge had told him he was not allowed to have guns, he again invoked the Fifth Amendment and refused to answer. Ordered to answer the question, defendant said, “I can’t lie. I can’t do it. I can’t do it.” Finally, after the trial judge posed the question, defendant answered it, denying that he had been told not to possess ammunition. Defendant himself did much harm to his own credibility.
Where the prosecution’s case is strong and defendant’s testimony implausible, any Castro error will be deemed harmless. (People v. Lang (1989)
The judgment is affirmed.
Boren, P. J., and Doi Todd, J., concurred.
Appellant’s petition for review by the Supreme Court was denied August 29, 2012, S203523. Werdegar, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.
Notes
All further statutory references are to the Penal Code, unless otherwise indicated.
Sergeant Machanic acknowledged that he saw no paraphernalia for a marijuana sales operation, such as packing devices, a scale, plastic bags of the type in which marijuana is sold, and marijuana drying racks, at either the storage yard or later during a search of defendant’s home.
“Assault weapon” was defined as any of a number of firearm makes and models enumerated in former section 12276 or having the capacity to accept a detachable magazine and one or more of the characteristics listed in former section 12276.1, subdivision (a).
“Firearm” was defined in the federal statute to include sawed-off shotguns and rifles, guns with silencers, and hand grenades, thus making clear that the crime of moral turpitude was the possession of an unregistered weapon belonging to a class of instruments “ ‘common to the “criminal’s arsenal” ’ ” such as a sawed-off shotgun. (Garrett, supra, 195 Cal.App.3d at pp. 799-800 & fn. 22.) Weapons prohibited by former section 12020 also include brass knuckles, undetectable firearms, explosive bullets, nunchakus, multiburst trigger activators, concealed dirks or daggers, and blackjacks.
Defendant cites a noncriminal case predating Castro, in which the cultivation of marijuana was found not to be a crime of moral turpitude. (See Board of Trustees v. Judge (1975)
Although defendant points to the prosecutor’s argument that the two offenses were crimes of moral turpitude and showed a readiness to do evil as demonstrating prejudice, these are separate issues. The prosecutor’s descriptions of the prior crimes were not proper argument and were irrelevant to the jury’s determination of credibility. (See People v. Koontz (2002)