P .v. Avina CA4/3

Filed 2/7/14 P .v. Avina CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047963

v. (Super. Ct. No. 11HF0667)

GUILLERMO AVINA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Law Offices of J. David Nick and J. David Nick for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Guillermo Avina represented himself at trial. The jury found him guilty of possession of marijuana for sale (Health & Saf. Code, § 11359; all undesignated section references are to the Health and Safety Code unless otherwise stated), transportation of marijuana (§ 11360, subd. (a)), and two misdemeanors (Veh. Code, § 23152, subds. (a) [driving under the influence of alcohol], (b) [driving with .08 or greater blood-alcohol content]). The court sentenced defendant to three years in prison. On appeal, defendant challenges his felony convictions, contending the trial court failed to instruct the jury pursuant to sections 11362.765, subdivision (c) and11362.775. We affirm. I FACTS1 On January 19, 2011, at approximately 2:51 a.m., Officer Shawn Preasmyer stopped defendant’s vehicle in the area of MacArthur Boulevard and Birch for an unsafe lane change. Upon contacting the driver, defendant, Preasmyer observed objective symptoms of impairment, including a strong odor of an alcoholic beverage. According to Preasmyer, the vehicle reeked of marijuana. He arrested defendant for driving under the influence after defendant performed field sobriety tests and took a breath test. The officer searched the vehicle and found “some marijuana and a couple vials of what appeared to be hash oil” near the center console. He also found what he described as pay/owe sheets with “several hundred” entries. The sheets contained a number of names and addresses, including addresses from outside California. Preasmyer also found approximately one pound of marijuana and $1,580 inside the vehicle. He opined the marijuana was possessed for sale and stated his opinion would not change if defendant had a valid state-issued medical marijuana card.