Thursday, August 29, 2013

People v. Dowl (Cal. Supreme Court - Aug. 29, 2013)

It's not that the California Supreme Court gets this one wrong.  It doesn't.  It's exactly right that the defendant forfeited any objection to the "expert" testimony of the police officer.  It's also right that the evidence against the defendant wasn't insufficient as a matter of law.

So why do I bother to mention the case?  Besides, of course, a desire to kiss up to the California Supreme Court?  (Because goodness knows I uniformly do that, and never say anything that might incur its ire.)  *Sarcasm Alert*

Two reasons.

First, in truth, the evidence against this guy is far less powerful than the Court makes it out to be.  Yes, it's legally sufficient.  But it's somewhat more lame that one might otherwise think.

The guy obviously had marijuana.  He admits as much.  The question is simply whether he had it for personal use -- which is permissible under the Compassionate Use Act -- or whether he instead possessed it for sale.  Since that's the offense for which he was convicted.

We've seen this defense raised in innumerable cases.  Usually brought by guys caught with like four or five pounds of pot or 300 or so marijuana plants.  Those guys pretty much seem guilty.  But they still raise (sometimes credibly) the defense.

But this guy ain't one of them.  He's playing loud music in his car, the police stop him, he tells 'em there's weed in the car and produces his CUA card, and they find a grand total of . . . two ounces of marijuana.  Not two pounds.  Two ounces.  The weight of a sixth of a can of soda.

I can guarantee you that there are plenty of people who possess two ounces of marijuana who use all of it themselves (and wouldn't even think of selling it).  Plenty.  In fact, I'd bet a fair piece of money that that's true right now for thousands of San Diego residents.  Including but not limited to, I'd guess, at least one or two of my current students.  Two ounces ain't a little.  But it ain't by any means a lot.  You could definitely go through that in a week (if you really liked the stuff) or a month.'

The thought that it's for personal possession is thus definitely plausible.  Indeed, for most people, I think it's more likely than not.  My (admittedly somewhat uneducated) guess would be that if you took all the people in California who currently possess two ounces of pot and put them into a room,  (1) that room would be the size of a football stadium, and (2) the majority -- perhaps the vast majority -- of those people possessed it for personal use, not for sale.

In short, two ounces ain't much.

But here's the additional evidence they have against Dowl.  All of it:

(1)  He also had $21 in cash with him.
(2)  He had 17.2 grams in a baggie in his pocket.
(3)  He had no bong or rolling papers with him.
(4)  He had a WD-40 can with a hidden compartment containing marijuana residue.
(5)  He had 3 grams in 10 baggies in his driver's side door, and 6.5 grams in 3 baggies in the back seat.
(6)  He had no pay-or-owe sheets with him.
(7)  He had a belt buckle that said "CA$H ONLY".
(8)  He was on probation for a prior offense of possession with intent.

Let's take those in order.

(1)  $21 in cash.  Seriously?!  That's all?  You'd think that'd be evidence that he didn't sell the stuff, since dealers generally carry more.  I've got more than that in my wallet right now.  So, I bet, do you.

(2)  17 grams in a pocket baggie.  You'd expect that from a guy who admittedly smoked pot.  That's a normal baggie.  A sixth of an ounce.  I've "heard of" guys who'd easily go through that in one sitting.  (To make clear:  I might have put quotes around that, but that's absolutely not a self-reference.)  That isn't evidence the guy is a dealer.

(3)  No bong or rolling papers.  That's because the dude's in his car.  Not surprising.  Plus, he's got a cigar "splitter" -- used for blunts -- on his keychain.  Not evidence he doesn't use.  Indeed, it's ample evidence he does.

(4)  Fake WD 40 can.  Yes, the guy clearly hid his weed.  So would you.  Even if you just used.  To hide it from the police (even if what you were doing was legal) and from would-be thieves.  Totally common.  Doesn't distinguish at all between users and dealers.

(5)  Baggies of 3 and 6.5 grams.  That's some real evidence, in my view.  Makes it legally sufficient.  But plenty of people distribute their weed; some here, some there.  Often in different baggies, and do so especially when (and if) they buy at different times.  Yes, that the baggies were "exactly" 3 grams -- a normal $5 or (rarely) $10 bag -- hurts the guy here.  But they'd be that if he bought 'em that way too.  Not just if he was selling them.

(6)  No pay-or-owe sheets with him.  The "expert" police officer said that was "very significant" and established that the guy sold for cash instead of credit.  Get real.  Users don't have pay or owe sheets either.  What'd be actual evidence is if the guy had pay-or-owe sheets.  Then he'd be a dealer.  This is a classic example of utter crap testimony.  Having pay or owe sheets proves you're a dealer.  And if you don't have 'em, then you're a dealer too.  Everyone's a dealer.  What a crock.

(7)  "CA$H ONLY" belt buckle.  The "expert" says this proves that Dowl sells weed for cash.  What it really establishes is Dowl's a Kern County redneck.  Plenty of people have stupid belt buckles.  We call them losers.  Or posers.  Or just plain pathetic.  Yes, I'm sure some dealers wear this.  They might also wear dreads and Marley t-shirts.  So do users.  You can't distinguish a dealer from a user by their attire.  It's just silly.

(8)  On probation for a prior offense.  Some evidence.  But then again, maybe he got busted then on the exact same evidence -- or even less evidence -- than that available here.  The belt buckle, the WD 40 can, the lack of a bong or pay-or-owe sheets.  Maybe that all stayed the same.  Alternatively, one might easily imagine a guy who used to sell -- or sold once -- and after getting busted, now merely uses.  That you once committed a bank robbery doesn't necessarily mean that every time you go into a bank you're planning on doing it again.

The California Supreme Court takes each one of these pieces of "evidence" incredibly seriously, and recounts each them in detail when explaining why the evidence was sufficient.  I think that the vast majority of them are utterly meaningless.  And were I the one writing the opinion, despite the fact that I would have reached the same result,  I would have expressly said so.  Because "evidence" like this -- coming from a police "expert" that explained how each of these facts purportedly proved that Dowl was a dealer -- is (1) common, and (2) a crock.

He's guilty because a jury said so, because he had lots of separate nickel bags, and because he was previously convicted.  End of story.

The rest of the stuff proves Dowl's guilt no more than the fact that he also happens to be African-American.  Which is to say, not at all.  Regardless of what an officer or a jury might think about the attire and habits of your "usual" drug dealer.

Right result.  But I'd have definitely expressed it in a different way.

My second point is much more concise.  I know I've said that wearing a "CA$H ONLY" belt buckle (available at, amongst others, LuxuryDivas.Com) isn't evidence of guilt.  But if you are, in fact, a drug dealer, please, please:  GET A CLUE.  Hold up your pants a different way.  'Cause it's just criminally stupid to advertise yourself that way.  To the police.  To jurors.  To anyone.

Come to think of it, strike all the caveats.  What I said is true whether you're a dealer, a user or just a guy on the street.  Strike the "criminal" part before "stupid" as well.  It's just incredibly lame.  There are so many other vapid, utterly pathetic belt buckles out there.  Get one of them instead.  If you feel a desperate need for a dollar sign, I'm sure that Ke$sha would be happy for some royalties instead.

But when it comes to a "CA$H ONLY" belt buckle:  Just say no.