People v. Pollack CA1/3

Filed 7/14/15 P. v. Pollack CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
A141132
v.
JACK DAVID POLLACK, (Lake County
Super. Ct. No. CR931079)
Defendant and Appellant.

Defendant appeals a judgment convicting him of possession of methamphetamine
for sale, transportation of methamphetamine, and unlawful possession of a firearm by a
felon, and sentencing him to 18 years in state prison. He contends the trial court erred in
denying (1) his request for a trial continuance to accommodate newly retained counsel
and (2) his motion to suppress. He also contends the court made numerous evidentiary
errors that prejudicially led the jury to believe that he was engaged in other unrelated
marijuana cultivation or, at the very least, was closely associated with others who were.
Finally, he contends he should have been sentenced to county jail rather than state prison
under the Criminal Justice Realignment Act of 2011. We find no prejudicial error and
shall affirm the judgment.
Factual and Procedural History
Defendant was charged with possession of methamphetamine for sale (Health &
Saf. Code, § 11378; count 1), transportation of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a); count 2), and unlawful possession of a firearm (Pen. Code, § 29800,
subd. (a); count 3). As to the methamphetamine charges, the amended information

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alleged that defendant had suffered six prior controlled substance convictions (Health &
Saf. Code, § 11370.2, subd. (c)) and two prior prison terms (Pen. Code, § 667.5,
subd. (b)).
The following evidence was presented at trial:
On November 9, 2012, about noon, Lake County Detective Dennis Keithly was
driving on Highway 29 between Middletown and Lower Lake. Detective Joe Dutra was
ahead of Detective Keithly in a separate car. A gray Ford pickup truck and a white Chevy
pickup truck were blocking the roadway. The driver of the Chevy, defendant, and the
driver of the Ford, Piyaco Brown, were attempting to push the Ford into a pullout on the
side of the road.
Detective Keithly recognized defendant and asked him if he could search his
truck. Defendant said yes. In the passenger compartment, the officers found a pump
switch wedged between the seatbelt latch and the center console within which was a
pouch containing three bags of methamphetamine. The officers also found $1,490 in cash
in defendant’s wallet. Keithly did not discover any drug use paraphernalia in defendant’s
truck.
When Keithly told defendant that he found methamphetamine in his truck,
defendant admitted it was his but denied that he was selling methamphetamine.
A search warrant was executed at defendant’s house later that day. In a workbench
area in the garage, officers found a digital scale with white residue, more leather pouches
identical to the one found in defendant’s truck, and an operating scanner set to the
sheriff’s office’s primary channel. In a bedroom, next to a desk that appeared to have
been used by defendant, officers found a “clearly visible” rifle propped in a corner. The
officers did not find in the house any needles, straws, pipes, or other paraphernalia for
methamphetamine use.
Detective Keithly opined, based on his training and experience, that the
methamphetamine found in defendant’s truck was packaged for sale. Keithly also
testified that defendant was not displaying any symptoms of being under the influence of
methamphetamine at the time of his arrest. He explained that heavy users will display

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physical signs of their habit, including track marks, “sucked up” faces, and body sores,
will have trouble sitting still, and will sweat profusely when using.
The parties stipulated that at the time of the charged offenses defendant was a
convicted felon prohibited from possessing firearms.
Daniel Stein testified for the defense. He testified that he hired defendant to
replace a well pump and on the morning of defendant’s arrest had given defendant a
$1,700 advance, in cash, for performing the work.
Ryan Runyon, founder of a residential drug and alcohol treatment program,
testified that despite his experience with drugs and treatment, he was not certain he could
tell “the difference between a user and a seller.” Runyon opined that it was not unusual
for methamphetamine users to possess eight to nine grams of methamphetamine and he
had also known users to have scanners and to use scales. Runyon had known defendant
since 2011. In the month preceding trial, defendant was receiving outpatient services
from Runyon, consisting of individual and group therapy.
Kim Cochran testified that in the morning of November 9, he dropped off a rifle at
defendant’s house with defendant’s wife, Peggy Pollack. Cochran did not see defendant
at the home and never told defendant he was storing a rifle at his house.
Peggy testified that she had been married to defendant for nearly 19 years.
Defendant had been a drug addict for 15 years, “on and off.” He usually used
methamphetamine. Around the time of his arrest, he used methamphetamine daily. His
teeth had deteriorated, and he used false teeth. She testified that she agreed to hold
Cochran’s gun that morning, that defendant was not home when it was dropped off, and
that she did not tell defendant about the gun. She testified that defendant owned the
scanner “[f]or emergency reasons.”
On rebuttal, Detective Dutra testified that he spoke to Peggy when the house was
searched and the rifle located. Peggy told him they had found the rifle when cleaning a
rental property. Another officer involved in the search of defendant's residence confirmed
that he heard Peggy tell Detective Dutra that defendant cleans rental properties, that the
rifle was left behind by the previous tenants, and that defendant brought it home after

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cleaning the site. Peggy acknowledged having that conversation with Dutra, but claimed
that she was referring to a pellet gun that was found in the garage, not the rifle. She did
not realize that Dutra was talking about the rifle until Cochran returned that evening and
the rifle was not there.
The jury found defendant guilty as charged. Thereafter, the trial court found true
all the special allegations.
Defendant was sentenced to 18 years in prison, calculated as follows: the upper
term of four years for transporting methamphetamine, three years each for four prior
controlled substance convictions, and one year for each of the prior prison terms. The
trial court stayed the upper term of three years for possessing methamphetamine for sale
pursuant to Penal Code section 654, imposed a concurrent upper term of three years for
the unlawful possession of a firearm, and dismissed two of the prior controlled substance
convictions pursuant to Penal Code section 1385.
Defendant timely filed a notice of appeal.
Discussion
1. The court did not abuse its discretion in denying defendant’s request for a
continuance to accommodate newly retained counsel.
Defendant contends he was denied his constitutional right to counsel of his choice
when the trial court refused to grant a continuance so that retained counsel could prepare
for trial, thereby effectively denying his request to substitute in retained counsel.
A. Background
The complaint was filed in this case in December 2012. The preliminary hearing
was conducted in May 2013 and defendant was arraigned on the information on June 4,
2013. At the arraignment, the case was set for trial on July 17. Defendant was represented
at the preliminary hearing and arraignment by appointed counsel.
At a settlement conference on July 1, 2013, appointed counsel stated that
defendant was in the process of retaining private counsel and that he needed a week for
that attorney to appear. The court continued the case to July 8 for settlement conference
and appearance of new counsel.

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 On July 8, appointed counsel requested the settlement conference be further
continued because defendant was still the process of retaining private counsel. The court
denied the request, noting that the court would hear defendant’s motion to suppress the
next day as scheduled. At the suppression hearing on July 9, appointed counsel stated that
two necessary defense witnesses had not appeared. The court ordered body attachments
for the missing witnesses and continued the matter to July 12, for a hearing on the status
of the witnesses.
On July 11, defendant moved to continue the trial on the ground that he was still
seeking to retain private counsel. At the hearing the following day, appointed counsel
reiterated that defendant was “diligently attempting to hire private counsel.” Appointed
counsel stated he had spoken with an attorney who said he was “likely going to be hired
. . . once [defendant is] able to acquire the funds for their services, which they anticipate
to occur in the not too distant future.” Defendant confirmed that he had been in a
residential treatment program until “[a] week” ago and that he was raising money to pay
for his new attorney, stating he would have the money by “[t]his coming up week . . . one
hundred percent for sure.” Over the prosecutor’s objection, the court continued the trial
until September 5, but told defendant, “If you come in with a lawyer towards September,
that’s just going to be too bad; it’s going to trial.” Defendant responded, “I understand.”
Later, the hearing of defendant’s motion to suppress was also continued to September 5.
On September 5, appointed counsel requested another continuance because the
witnesses had not appeared. The prosecution opposed a continuance, noting “[t]his is the
third time that we’ve shown up with our witnesses ready to go.” The court continued the
case, setting the next hearing for September 20. The suppression motion was ultimately
heard and denied on September 24. At the status hearing on September 27, the court
confirmed that the case was set for trial on October 2.
On October 2, defendant appeared with his appointed counsel and newly retained
counsel, Roy Miller. Miller indicated he had been contacted by defendant earlier, but that

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defendant had not been able to afford Miller’s representation until “yesterday.”1 Miller
indicated he was not prepared to go forward with trial, as there were problems with the
subpoenas for the defense witnesses and he had not reviewed the police reports or
transcripts. Miller said that if he could resolve the issues with the defense witnesses, he
could be ready for trial by November 4.
The court denied defendant’s motion for a continuance, finding that it was “an
unreasonable request under these circumstances.” The court expressed concern that a jury
panel had already been summoned, and explained that when the matter was confirmed for
trial the previous Friday, there was no mention of new counsel at that time.
B. Analysis
“The right to the effective assistance of counsel ‘encompasses the right to retain
counsel of one’s own choosing. [Citations.]’ [Citation.] Underlying this right is the
premise that ‘chosen representation is the preferred representation. Defendant’s
confidence in his lawyer is vital to his defense. His right to decide for himself who best
can conduct the case must be respected wherever feasible.’ ” (People v. Courts (1985) 37
Cal.3d 784, 789 (Courts).) The unjustified deprivation of counsel of the defendant’s
choice is a structural error requiring reversal, and is not subject to harmless error analysis.
(United States v. Gonzalez–Lopez (2006) 548 U.S. 140, 149-150.)
“Generally the trial court has discretion whether to grant a continuance to permit a
defendant to be represented by retained counsel.” (People v. Jeffers (1987) 188
Cal.App.3d 840, 850.) “A continuance may be denied if the accused is ‘unjustifiably
dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the
time of trial.’ ” (Courts, supra, 37 Cal.3d at pp. 790-791.) Trial courts should
accommodate requests for continuances to obtain retained counsel “ ‘to the fullest extent
consistent with effective judicial administration.’ ” (Id. at p. 791.) In determining whether
denial of a continuance is so arbitrary as to violate due process, courts look to the

1
Miller is not the attorney defendant thought he would likely retain at the time he sought
the continuance in July.

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circumstances of each particular case, particularly the reasons presented to the trial court.
(Ibid.)
In Courts, the California Supreme Court held the trial court’s failure to grant a
requested continuance constituted error where the defendant made diligent efforts “(1) to
secure counsel of his own choosing before the date of trial, and (2) to apprise the court of
his wishes at the earliest possible time.” (Courts, supra, 37 Cal.3d at pp. 795-796.)
Significant in Courts were the following facts: After two months of effort, the defendant
had completed his financial arrangements and retained private counsel five days before
trial was to start; the defendant unsuccessfully moved for a continuance eight days before
trial; and the defendant attempted to calendar a renewed motion four days before trial, but
the renewed motion was not actually heard until the trial date, when the motion was again
denied. (Id. at pp. 787-789.) The Supreme Court emphasized, “a lawyer-client
relationship had been established” five days before trial if not earlier; thus, “the court was
not confronted with the ‘uncertainties and contingencies’ of an accused who simply
wanted a continuance to obtain private counsel.” (Id. at p. 791.) Courts also emphasized
the absence of “circumstances which warranted the limitation of appellant’s right to
counsel based on considerations of judicial efficiency.” (Courts, supra, 37 Cal.3d at
p. 794.) The court explained, “The record fails to show that a continuance would have
significantly inconvenienced the court or the parties. [Citation.] There was no evidence
that the Shasta County Superior Courts were particularly congested during this period. If
anything, the availability of two judges to try the case . . . suggests the contrary. No
mention of inconvenience to jurors . . . was ever made. . . . [¶] In addition, the prosecutor
failed to express any valid concern about an inconvenience to witnesses which might
have resulted if a continuance had been granted.” (Id. at pp. 794-795, fn. omitted.)
In contrast, in this case defendant was warned in July that time was running out to
retain counsel and that the court would not continue the trial if he appeared with new
counsel on the eve of trial. That is precisely what defendant did. As the court noted, the
case was confirmed for trial on the Friday before and defendant did not indicate that he
had retained counsel or was still attempting to retain counsel. Defendant was granted

7
numerous continuances because his witnesses had not appeared, inconveniencing the
court and the prosecution’s witnesses who had appeared for the continued hearings.
Defendant argues that all of the prosecution’s witnesses lived locally or were employees
of the county and could have been resubpoenaed. Had this been defendant’s first request
for a continuance, this factor might have been entitled to greater weight. Since the
witnesses had been subpoenaed three times, however, it was reasonable to conclude they
were being unfairly burdened by the continuances. On October 2, the prosecution’s
witnesses were present and the prospective jurors had been called to the courtroom.
Under these circumstances, we cannot say that the court abused its discretion in denying
the motion to continue.
2. Defendant’s motion to suppress was properly denied.
Defendant contends the trial court erred by denying his motion to suppress
because the search of his truck exceeded the scope of his consent.
A. Background
Defendant filed a motion to suppress alleging that the search of his truck was
unlawful and that the evidence located in the truck and in his residence should be
suppressed. The following testimony was presented at the hearing on the motion:
The parties stipulated there was no warrant for the search of defendant’s truck.
Detective Keithly testified that he recognized defendant as a narcotics offender and asked
him if he had anything illegal on his person or in his vehicle. Defendant said no. Keithly
pat-searched defendant and found nothing. Keithly asked if he could search defendant’s
vehicle and defendant responded, “Yes.” Dutra heard Keithly ask for consent to search
defendant’s person and vehicle and heard defendant respond “yes.” Defendant testified
that when Keithly asked if he could search him and his truck, defendant responded, “You
can search me but not my truck.” Brown testified that he heard the detectives ask if they
could search defendant’s person and truck and heard defendant say that they could search
his person but not his truck.
The detectives found methamphetamine concealed inside a pump switch in the
driver’s seat. An electric pump switch is a round tube with wires used as a switch for a

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pump. The switch in defendant’s truck had a non-screw-top lid. Keithly did not ask
defendant for permission to open the pump switch and opened the lid without using force
or tools.
The prosecutor argued that the evidence showed that defendant had consented to
the search. The defense countered that no consent had been given, and that even had
defendant consented to a search of his truck, the detectives exceeded the scope of that
consent by opening a container within the truck.
The court denied the motion, finding that “the People have met their burden to
show that this was a consent search.”
B. Analysis
The standard of review for the denial of a motion to suppress is well settled. “We
defer to the trial court’s factual findings, express or implied, where supported by
substantial evidence. In determining whether, on the facts so found, the search or seizure
was reasonable under the Fourth Amendment, we exercise our independent judgment.”
(People v. Glaser (1995) 11 Cal.4th 354, 362.)
A warrantless search is presumed illegal. (People v. James (1977) 19 Cal.3d 99,
106.) “Consent to a search is a recognized exception to the Fourth Amendment’s warrant
requirement. [Citation.] The prosecution bears the burden to prove that a warrantless
search was within the scope of the consent given. [Citation.] ‘A consensual search may
not legally exceed the scope of the consent supporting it. [Citation.]’ [Citation.] ‘The
standard for measuring the scope of a suspect’s consent under the Fourth Amendment is
that of “objective” reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the suspect? [Citations.]’ [Citation.]
‘Whether the search remained within the boundaries of the consent is a question of fact to
be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we
uphold the trial court’s determination.’ ” (People v. Cantor (2007) 149 Cal.App.4th 961,
965.)
In Florida v. Jimeno (1991) 500 U.S. 248, 251, the high court explained that the
scope of consent usually is defined by the expressed object of the search. In that case,

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where a police officer stopped a vehicle, informing the occupant of the officer’s suspicion
that the vehicle contained narcotics, the driver’s consent to a search of the vehicle
reasonably could be understood to include within its scope the search of a closed paper
bag discovered within the vehicle. The court reasoned that despite being informed that
the officer would be looking for narcotics, the defendant “did not place any explicit
limitation on the scope of the search.” (Ibid.) The court concluded, “We think that it was
objectively reasonable for the police to conclude that the general consent to search
respondent’s car included consent to search containers within that car which might bear
drugs. A reasonable person may be expected to know that narcotics are generally carried
in some form of a container. . . . The authorization to search in this case, therefore,
extended beyond the surfaces of the car’s interior to the paper bag lying on the car's
floor.” (Ibid.) Although the court warned that the defendant’s consent probably would not
extend to a locked briefcase in the trunk of the car, the court rejected the defendant’s
contention that the police must request separate permission to search each container in
the area to be searched. (Id. at pp. 251-252.)
Here, the record establishes that the officer recognized defendant as a narcotics
offender and defendant also recognized the officer. Although the evidence was
conflicting, the court was entitled to believe the prosecution witnesses who testified that
defendant consented to the search without any qualification. A reasonable person in these
circumstances would understand the officer’s request for consent to search as a request to
search for drugs and would have believed that the container in which the officer found
the drugs was within the scope of the consent given. (People v. Crenshaw (1992) 9
Cal.App.4th 1403, 1415 [consent to search the car for drugs included consent to remove
the door vent and search the door panel which might reasonably hold drugs.]; People v.
Williams (1980) 114 Cal.App.3d 67, 73 [consent to search a vehicle “authorize[s] a
search of all compartments in the automobile and of any containers found within those
compartments”]; People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507,
1516 [“The permissible scope of the search in this case extended to any part of the pickup
where drugs reasonably may have been hidden.”].) The pump switch was not within a

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locked compartment and no tools were required to open it. It was located in plain sight,
next to the driver’s seat.
Defendant’s reliance on People v. Cantor, supra, 149 Cal.App.4th 961 is
misplaced. In that case, the officer asked the defendant whether he had anything illegal in
his car and asked if he could “ ‘check real quick and get [the defendant] on [his] way,’ ”
and the defendant agreed. (Id. at p. 964.) The officer searched the cab, the trunk, under
the hood, and the cab several more times. (Ibid.) He called for a police dog and removed
items from the trunk. (Ibid.) He found a record cleaner inside the trunk, removed the
screws holding the back panel to the cleaner, pulled a paper bag out, and found cocaine
inside of the bag. (Ibid.) The court held that the officer’s search of the defendant’s
vehicle exceeded the scope of the defendant’s consent. (Ibid.) The court explained, “The
trial court erred as a matter of law by failing to recognize the limited scope of [the]
defendant's consent. Once [the officer’s] exhaustive search of all compartments of the car
revealed no contraband, [the] defendant’s consent ended.” (Id. at pp. 965-966.) Critical to
the court's determination was the fact that the defendant agreed to only “a ‘real quick’
‘check’ of the car.” (Id. at p. 965.) Here, no similar limitation was placed on the search of
defendant’s truck and the drugs were located within a brief period after defendant gave
his consent to the search.
We find no error in the denial of defendant’s motion to suppress. 2
3. Defendant’s witnesses were not improperly impeached.
Defendant contends that the court erred in allowing three of his witnesses to be
impeached with evidence that they “were criminals and drug dealers.” He argues the
evidence was highly prejudicial and deprived him of a fair trial. A trial court’s ruling on

2
At the trial, Detective Keithly testified that he opened the lid of the container by
wiggling, prying and unscrewing it. On appeal, defendant argues, that if these additional
facts are deemed dispositive, then he was denied his state and federal constitutional rights
to effective assistance of counsel based on his attorney’s failure to bring out these facts at
the motion to suppress hearing. (Strickland v. Washington (1984) 466 U.S. 668.) These
additional facts, however, would not alter our conclusion that the court properly denied
the motion to suppress.

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the admissibility of evidence, including a ruling on an Evidence Code section 352
objection, is reviewed for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955,
overruled on other grounds People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
A. Daniel Stein
Defendant contends Stein was improperly impeached with evidence that he had a
prior conviction for cultivation of marijuana. During cross-examination, the prosecutor
asked Stein if he pled guilty to or was convicted of cultivation of marijuana in Los
Angeles in March 2011. Defense counsel objected on relevance grounds, and the court
overruled the objection. Stein responded that “it was a DEJ [delayed entry of judgment].”
When the prosecutor attempted to press Stein on whether he had pled guilty, the court
interrupted the cross-examination and addressed counsel off the record. At the conclusion
of Stein’s testimony, defense counsel asked that Stein’s “answers regarding the DEJ be
stricken” and the court said “okay.”
Later, outside the presence of the jury, there was a discussion between the court
and counsel about whether a person placed on deferred entry of judgment can be
impeached with the underlying charge. Ultimately, the court concluded that the
prosecution “can’t use [a] deferred entry of judgment plea of guilty for purposes of
impeachment pursuant to section . . . 788 of the Evidence Code.” The court told counsel
that it would instruct the jury “to disregard any testimony about the witness Daniel
Stein’s involvement with a violation of Health and Safety Code section 11358.”
Thereafter, the court advised the jury that “[a]ny questions and answers relating to
marijuana during the testimony of Daniel Stein are ordered stricken.” The jury was given
the standard closing instructions that it should disregard stricken testimony and not
consider it for any purpose.
Defendant argues that “the court’s brief admonition to the jury that ‘[a]ny
questions and answers relating to marijuana during the testimony of Daniel Stein are
ordered stricken,’ without any further explanation or even an admonition to disregard the
testimony, was insufficient to negate the prejudice arising from having the jury learn of
Stein’s alleged marijuana cultivation.” However, the court did admonish the jury to

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disregard the stricken testimony as part of the standard closing instructions and we must
assume that the jury did so. (People v. Beach (1983) 147 Cal.App.3d 612, 624 [“It must
be presumed that the jurors followed the instructions of the trial court.”].)
Moreover, the potential prejudice of this evidence was substantially reduced by the
fact that the prior conviction was for cultivation of marijuana and not for the sale of the
drug. Defendant did not deny that he was a drug user. The relevant question for the jury
was whether he was selling methamphetamine.
B. Kim Cochran
Defendant contends the court erred in allowing the prosecutor to question Cochran
about whether he saw marijuana plants growing at defendant’s house. At an Evidence
Code section 402 hearing held prior to Cochran’s testimony, the court held that the
prosecutor could ask the question of Cochran. Although the court initially expressed
concern “about Mr. Pollack getting associated with marijuana, that really has nothing to
do with the charges in this case,” the court ultimately allowed the question because the
prosecutor had represented to the court that the marijuana plants would have been visible
to someone at the front door and the prosecutor was “testing the credibility of this witness
on a point that is absolutely germane to the issues in this case; that is, whether or not he
was there.”
At trial, when the prosecutor asked Cochran whether he saw the marijuana plants
at defendant’s home, Cochran testified that he had seen the plants. The prosecutor then
attempted to impeach Cochran with testimony, given the day before at the Evidence Code
section 402 hearing, in which he denied seeing the marijuana plants at the house. In
response to the prosecutor’s questions, Cochran explained that he thought he said that he
did not “think” he saw any marijuana plants, but that he now thought that there could
have been marijuana on the other side of some bamboo by the front door.
There was no error in the admission of this testimony. Defendant concedes that the
question was relevant because it tested Cochran’s credibility, but argues that the evidence
should have been excluded because his credibility could have been tested in other less
prejudicial ways However, defendant does not suggest what other means the prosecutor

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could or should have used to test Cochran’s credibility, and the prosecutor was not
required to ask a different question if the answer elicited by the question was not unduly
prejudicial. Since defendant was an admitted methamphetamine user, the fact that he had
marijuana plants growing in his home was not unduly prejudicial. Moreover, defendant’s
wife took responsibility for the plants, claiming they were a medicinal treatment for her
cancer.
Defendant also contends the court erred by allowing Cochran to be impeached by
evidence that he and Peggy “were engaged in a major marijuana cultivation and
trafficking operation.” Prior to Cochran’s testimony, the court ruled that evidence of
participation by Cochran and Peggy in a marijuana cultivation business was relevant
because it establishes his “bias, interest, or other motive” for testifying on behalf of
defendant. (Evid. Code, § 780, subd. (f).) The court also ruled that because Cochran
would invoke his Fifth Amendment right if questioned directly about his business
relationship with Peggy, the evidence could be presented through testimony by Keithly
and Peggy.
Consistent with the court’s ruling, Keithly testified that he had contact with
Cochran a couple of months prior to trial when serving an unrelated search warrant.
Cochran was present at the service of the search warrant when officers located 80
marijuana plants at a property in Lower Lake. At that time, officers found three pounds of
processed marijuana in Cochran’s truck. They also found notebooks containing a “to-do
list pertaining to the cultivation, the watering and caring for the marijuana plants.”
Peggy’s phone number was found in one of the notebooks. Peggy testified she had a
“business-type” relationship with Cochran, but denied it involved the sales and
distribution of marijuana.
Defendant contends this evidence was unduly prejudicial and should have been
excluded. Defendant argues that the testimony “about his wife and Cochran being
engaged in marijuana cultivation and trafficking, unfairly implicated appellant directly”
and “given appellant’s relationship to these witnesses, there was a danger that the jury
believed appellant himself was involved in ongoing cultivation and trafficking of

14
marijuana.” However, nothing in the contested evidence suggested Cochran and Peggy
were involved in marijuana trafficking. Keithly did not testify that any indicia of sales
was found in the notebooks seized from Keithly’s truck. At most, the evidence
established that Cochran and Peggy were involved in a fairly large cultivation operation.
Because defendant was an admitted drug user, the fact that he was closely associated with
people that grew marijuana would not be particularly prejudicial. (People v. Karis (1988)
46 Cal.3d 612, 633 [“ ‘The “prejudice” referred to in Evidence Code section 352 applies
to evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.’ ”].)
C. Peggy Pollack
On cross-examination, Peggy acknowledged that she had received food stamps
from 2010 through 2012 and that she had stated in her food stamps application, under
penalty of perjury, that her household was drug free. She claimed, however, that she was
not aware of any drug use by defendant at that time, so believed she was being truthful on
the application. She also acknowledged that she had not reported defendant’s income on
the application because “he didn’t qualify since he was a felon” and that she had been
contacted by Social Services about the overpayment of benefits.
Defendant contends he was unfairly prejudiced by the suggestion that Peggy had
committed welfare fraud. He argues, “Neither her assertion that the residence was drug
free in 2011, nor her alleged failure to report appellant’s income, have any bearing on
whether appellant committed the charged offenses.” This evidence, however, was clearly
relevant to Peggy’s credibility and not so prejudicial that the court was required to
exclude it.
4. Defendant was not prejudiced by the admission of other crimes evidence.
Defendant contends that the trial court erred in admitted evidence that tended to
show that he was “engaged in criminal activity, or at the very least, was closely
associated with others who were.” In addition to the evidence of marijuana cultivation
discussed above, defendant faults the court for allowing Keithly to testify that when he
saw defendant on the side of the road, he recognized him from “prior law enforcement

15
contacts” and erred in allowing Runyon to testify that defendant first approached him for
treatment in connection with an unrelated criminal case. Keithly’s testimony however,
was stricken by the court and the jury was advised not to consider it for any purpose. We
presume the jury followed the court’s instructions. More importantly, given the parties’
stipulation that defendant was a convicted felon and prohibited from possessing firearms,
there is no likely basis on which this testimony prejudiced defendant.
5. Defendant was properly sentenced to state prison.
Defendant contends that under the Criminal Justice Realignment Act of 2011
(Realignment Act), Penal Code section 1170, subdivision (h), he should have been
sentenced to the county jail, and not state prison.3 “As relevant here, the Realignment Act
significantly changes the punishment for some felony convictions. Under the terms of the
Act, low-level felony offenders who have neither current nor prior convictions for serious
or violent offenses, who are not required to register as sex offenders and who are not
subject to an enhancement for multiple felonies involving fraud or embezzlement, no
longer serve their sentences in state prison. Instead, such offenders serve their sentences
either entirely in county jail or partly in county jail and partly under the mandatory

3
Section 1170, subdivision (h) provides, in relevant part: “(1) Except as provided in
paragraph (3), a felony punishable pursuant to this subdivision where the term is not
specified in the underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years. [¶] (2) Except as provided in paragraph
(3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment
in a county jail for the term described in the underlying offense. [¶] (3) Notwithstanding
paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction
for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a
prior felony conviction in another jurisdiction for an offense that has all the elements of a
serious felony described in subdivision (c) of Section 1192.7 or a violent felony described
in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of
a crime and as part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to this subdivision shall
be served in state prison.”

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supervision of the county probation officer.” (People v. Scott (2014) 58 Cal.4th 1415,
1418.)
“[S]tate prison remains the default punishment for felony convictions even after
realignment, unless the offense is punishable pursuant to subdivision (h) of section
1170.” (People v. Vega (2014) 222 Cal.App.4th 1374, 1382.) In Vega, the court explained
that section 18, subdivision (a) provides the general rule for sentencing felonies:
“ ‘Except in cases where a different punishment is prescribed by any law of this state,
every offense declared to be a felony is punishable by imprisonment for 16 months, or
two or three years in the state prison unless the offense is punishable pursuant to
subdivision (h) of Section 1170.’ ” (Vega, p. 1382.) Subdivision (h) of section 1170
“harmonizes its language with section 18 by starting both paragraphs (1) and (2) with the
phrase ‘Except as provided in paragraph (3), a felony punishable pursuant to this
subdivision. . . .’ ” (Vega, p. 1382.) Under section 669, subdivision (d), “When a court
imposes a concurrent term of imprisonment and imprisonment for one of the crimes is
required to be served in the state prison, the term for all crimes shall be served in the state
prison, even if the term for any other offense specifies imprisonment in a county jail
pursuant to subdivision (h) of Section 1170.” Accordingly, the first step in a court’s
analysis is to determine whether a given offense is subject to sentencing pursuant to
section 1170, subdivision (h).
The parties do not dispute that defendant was subject to sentencing under section
1170, subdivision (h) for his two drug related offenses. (Health & Saf. Code, § 11378 [“a
person who possesses for sale a controlled substance that meets any of the following
criteria shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of
the Penal Code”]; Health & Saf. Code, § 11379 [“[E]very person who transports, imports
into this state, sells, furnishes, administers, or gives away, or offers to transport, import
into this state, sell, furnish, administer, or give away, or attempts to import into this state
or transport any [qualified] controlled substance . . . unless upon the prescription of a
physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code

17
for a period of two, three, or four years.”].) The parties disagree, however, as to whether a
conviction under section 29800 is subject to sentencing under Penal Code section 1170,
subdivision (h).
Section 29800, subdivision (a)(1) provides: “Any person who has been convicted
of a felony under the laws of the United States, the State of California, or any other state,
government, or country, . . . and who owns, purchases, receives, or has in possession or
under custody or control any firearm is guilty of a felony.” The People argue that because
section 29800 does not provide that the offense is punishable in accordance with section
1170, subdivision (h), it is subject to the default sentencing provisions of section 18. We
agree that under the plain language of the statute, being a felon in possession of a firearm
is a state prison offense under realignment.
Contrary to defendant’s argument, section 28900 is not ambiguous. “[S]tatutory
interpretation begins by examining the language of the statute, giving the words their
ordinary meaning and considering them in the context of the statutory framework.”
(People v. Kelly (2013) 215 Cal.App.4th 297, 303.) “In interpreting a statute, a court’s
objective is to ascertain the intent of the Legislature so as to effectuate the purpose of the
law. [Citation.] To do so, we look first at the statutory language. If it is clear and
unambiguous, we go no further. If, however, the language is ambiguous, we apply
appropriate tools of statutory construction.” (Id. at pp. 304-305.) The fact that section
29800 does not expressly provide that the offense is punishable in state prison does not
reflect a legislative intent that it is a low-level offense, the violation of which requires a
local sentence, and not a prison sentence.
6. The abstract of judgment should be amended to reflect 100 additional days of
presentence custody credits.
Defendant argues, and the People agree, that the abstract of judgment must be
corrected to reflect a total of 308 days of presentence credit. The trial court awarded
defendant 154 days of credit for time served and 154 days of conduct credits. The
abstract of judgment correctly indicates those days, but erroneously totals them as 208
days. Accordingly, the trial court must amend the abstract of judgment to reflect a total of

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308 days of presentence custody credit. (See People v. Mitchell (2001) 26 Cal.4th 181,
185.)
Disposition
The judgment is affirmed. The abstract of judgment shall be corrected as indicated
above.

_________________________
Pollak, J.

We concur:

_________________________
McGuiness, P. J.

_________________________
Jenkins, J.

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