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Name: People v. Polk
Case #: E069641
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/14/2019

There was sufficient evidence that defendant possessed a useable quantity of methamphetamine on small pieces of paper based on circumstantial evidence and expert testimony from a correctional officer. Polk, an inmate at a California Rehabilitation Center, was found in his cell with eight small pieces of methamphetamine-infused paper. This led to his conviction of possession of methamphetamine while in prison (Pen. Code, § 4573.6). On appeal he argued there was insufficient evidence that the pieces of paper contained a usable quantity of the drug. Held: Affirmed. Drug possession under section 4573.6 requires the defendant’s: (1) exercise of control over an illegal drug, (2) knowledge of the substance’s presence, (3) knowledge that the substance is illegal, and (4) possession of a usable amount of the drug. A usable amount is a quantity that is enough to be used as a controlled substance, but does not have to be enough in either amount or strength to effect the user. Useless traces are not considered usable amounts. Here, an officer testified that he had recently been trained that inmates were bringing methamphetamine-infused paper into prisons. He recognized the methamphetamine based on the grainy feel of the paper. His suspicions were confirmed by his own preliminary testing and by testing at a laboratory. The drug on the pieces of paper were designed to be used by placing the paper under the tongue and letting it dissolve. This evidence was sufficient to support a finding of usable quantity, despite the absence of evidence regarding the weight of the drug present on the papers.

The trial court properly allowed a correctional officer to testify that the amount of methamphetamine on the papers was a usable quantity. Prior to trial Polk sought to exclude testimony by a correctional officer as to whether the methamphetamine on the papers was a usable amount, based on foundational, relevance, and Evidence Code section 352 grounds. The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact. An expert may testify based on matters perceived by or personally known to him at or before the hearing that is the type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates. Here, the officer had been working at the prison for over 11 years and was trained to recognize methamphetamine, which he had discovered in the prison a number of times. The officer could properly rely on his training, which included discussions with other prison officers as to ways contraband was making its way into the prison system, and that methamphetamine-infused paper was used by placing it into one’s mouth to dissolve. His testimony was properly admitted.

The trial court did not improperly limit defense argument addressing the quantity of methamphetamine found on the papers. The prosecution objected to a slide used during defense closing argument, which asked whether the prosecution had proved the methamphetamine was of sufficient quantity to be used by a person as a controlled substance. Defense counsel also argued that a criminalist and a toxicologist who testified could not determine the quantity of methamphetamine in this case, and the toxicologist stated that she could not determine a useable amount in this case. The prosecution’s objection was sustained. On appeal, Polk argued the trial court’s ruling violated his Sixth Amendment right to effective counsel and a fair trial. The Court of Appeal disagreed. A usable quantity is “a quantity that is enough to be used by someone as a controlled substance.” (People v. Carrasco (1981) 118 Cal.App.3d 936, 947-948.) The People did not have to prove the purity of the methamphetamine or that it was capable of producing a narcotic effect. However, the trial court interpreted defense counsel’s argument to be that the prosecution had to prove a specific quantitative amount of the drug was present on the papers. Given the court’s broad discretion to limit closing arguments, it cannot be said this interpretation was an abuse of discretion.

The full opinion is available on the court’s website here: