People v. Gabriel CA4/3

Filed 8/31/15 P. v. Gabriel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G049813 consol. w/ G049819

v. (Super. Ct. Nos. 12WF0424 & 12WF1787) MICHAEL JOSEPH GABRIEL, OPINION Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Fay Arfa for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

Michael Joseph Gabriel appeals from a judgment after a jury convicted him of possession for sale of a controlled substance. Gabriel argues insufficient evidence supports his conviction, the trial court erred in admitting expert testimony, the trial court erred in instructing the jury, and there was cumulative error. None of his contentions have merit, and we affirm the judgment. FACTS1 When officers searched Gabriel’s apartment in February 2012, Gabriel, who was home alone, appeared to be under the influence of methamphetamine. There was a baggie of methamphetamine on the bedroom desk. The baggie was marked with a dash. It had a gross weight of 0.4 grams and held a net weight of .072 grams of methamphetamine. A used methamphetamine pipe was lying on his bed. A cloth bag and a hard cylindrical case were also on the desk. The cloth bag held two digital scales and multiple empty clear plastic baggies. The hard cylindrical case contained eight baggies of methamphetamine. Five of the baggies were marked with a dash, and each had a gross weight of 0.5 grams. One contained a net weight of 0.384 grams of methamphetamine. Two of the baggies were marked with a symbol with two lines, like a backward 7. Each weighed 0.7 gross grams. The eighth baggie had a gross weight of 1.2 grams and contained a net weight of 0.945 grams of methamphetamine. It was marked with a symbol with three lines, like three sides of a square. An information charged Gabriel with possession for sale of a controlled substance (Health & Saf. Code, § 11378), and alleged he was previously convicted of the same offense (Pen. Code, § 1203.07, subd. (a)(11)). The information alleged he had