People v. Martinez CA1/5

Filed 4/18/14 P. v. Martinez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A138173 v. FRANCISCO JAVIER MARTINEZ, (San Mateo County Super. Ct. No. SC077294) Defendant and Appellant.

Francisco Martinez appeals from a judgment of conviction and sentence imposed after a jury found him guilty of furnishing a controlled substance (Health & Saf. Code, § 11352). He contends (1) the court erred in instructing the jury on the meaning of the word “furnishing,” and (2) a probation condition prohibiting Martinez from possessing controlled substances is inconsistent with the court’s order allowing him to do so. We will modify the probation condition and affirm the judgment in all other respects. I. FACTS AND PROCEDURAL HISTORY An information charged Martinez with unlawfully transporting, importing, selling, furnishing, administering or giving away a controlled substance, or offering to do so, in violation of Health and Safety Code section 11352. The matter proceeded to a jury trial. A. Evidence at Trial While on duty in a marked patrol car on December 19, 2012, South San Francisco Police Officer Henry Velez observed Martinez conversing with James

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Woodard. Velez then saw Martinez take a pill out of a green bottle and place it in Woodard’s hand. As Officer Velez approached, Woodard turned his back toward the officer and Martinez put the cap back on the bottle. Velez confirmed that the green bottle Martinez was holding was a pill bottle from a pharmacy. Officer Velez searched Woodard and, after pulling out Woodard’s front left pants pocket, noticed a white pill by Woodard’s foot. The pill had not been there before the search. The pill was clean, so it did not appear to have been there long, and it was similar to the pills in Martinez’s pill bottle. Meanwhile, South San Francisco Police Officer Robert Reinosa arrived at the scene; while Officer Velez was searching Woodard, Reinosa spoke with Martinez. Martinez told Reinosa that, after having his prescription filled in the morning, he approached Woodard, asked him for a cigarette, and showed Woodard the prescription. Martinez’s prescription was for 20 pills, and only 18 pills were in the bottle. Martinez first claimed that he had taken two pills; when Reinosa confronted him with the pill found on the ground, however, Martinez admitted that he had taken one pill and given one to Woodard. Officer Velez transported Martinez and Woodard to the police station. After Velez read Martinez his Miranda rights,1 Martinez told Velez that he had consumed both pills that were missing from the 20-pill prescription bottle. Velez confronted Martinez with his statement to Officer Reinosa—that he had taken only one of the pills and given the other to Woodard—and Martinez again admitted he gave Woodard one of his pills. Martinez acknowledged it was wrong to give “Vicodin” to others, but he gave a pill to Woodard to thank Woodard for giving him a cigarette. Officer Velez’s police report recorded Martinez’s claim that he was just showing the pill to Woodard, but it also recorded Martinez’s statement that he could not remember whether Woodard had given the pill “back” to him. Although Velez’s