PEOPLE v. NEWMAN

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Hollis Lee NEWMAN, Defendant and Appellant.

Cr. 8227.

Decided: January 11, 1971

Michael J. Mandel, Anderson & Levine, San Francisco, for appellant (under order of Court of Appeal). Thomas C. Lynch, Atty. Gen., of State of California, Robert R. Granucci, John F. Henning, Jr., Deputy Attys. Gen., San Francisco, for respondent.

Defendant appeals from an order granting him probation1 following a jury verdict finding him guilty of possessing a dangerous restricted drug for the purpose of sale as proscribed by Health and Safety Code section 11911.2 Defendant contends that his conviction should be reversed because evidence obtained was the product of an illegal search, there was no substantial evidence to support the verdict, a specific intent instruction should have been given, he was denied the effective assistance of counsel, and the prosecutor was guilty of prejudicial misconduct. We have concluded that none of these contentions has merit and that the order appealed from must be affirmed.

Facts

In the early morning of April 11, 1969, Officers Olmstead and DeVaney of the Highway Patrol stopped defendant for speeding. Defendant exited his vehicle and came back to meet the officers. Upon request, defendant produced his driver's license and proceeded to the vehicle to secure the vehicle registration. DeVaney followed defendant to the vehicle and there detected the odor of what prior experience told him was burnt marijuana. Olmstead confirmed the suspicion. Accordingly, defendant and two co-occupants, Miss Carol Slaight and Miss Lynda Smith, were placed under arrest.

While standing adjacent the vehicle, Olmstead shined his flashlight inside. On the left rear floorboard he observed what appeared to be a marijuana seed.3 Accordingly, defendant and his passengers were placed under arrest for possession of marijuana. Defendant was taken to the police car, where he was searched for weapons.

While awaiting the arrival of assistance from the sheriff's office, Olmstead sat in the driver's seat of the vehicle. While so seated, he noticed a sealed envelope placed on the tape deck below the dashboard. He observed a bulge in the envelope. Curious as to its contents, Olmstead withdrew the envelope and felt it. He then opened the envelope and found eight plastic bags of ‘white powder,’ which subsequent laboratory tests revealed to be methedrine, a dangerous restricted drug.

A toxicologist testified that the eight plastic bags contained 4.5 grams, or 450 milligrams, of methedrine. He testified, further, that the substance is usually dispensed in 5 to 10 milligram quantities and that the quantity of methedrine contained in the eight plastic bags was sufficient to produce 450 capsules.

One of the arresting officers testified that each of the plastic bags was commonly referred to as a ‘bindle’ and that each of these bags was a ‘dime-bindle’ which meant a $10 bindle. Another officer experienced with narcotics testified that his analysis had indicated that prior to testing there were 5.1 grams of a substance which proved to contain an amphetamine in the 8 bindles. He confirmed the going price of $10 per ‘bindle,’ and testified that each ‘bindle’ should take care of four injections of methedrine, so the total would be about 32 injections, and that ordinarily one injection is all that one person would take in a day. He further testified that of 200 cases that had gone through the Napa County Sheriff's office in the past year, the ordinary case involved one bindle, and the next largest case involved two or possibly three bindles, and that he did not recall another case involving that much methedrine. He concluded on the basis of his experience, training and judgment that the bindles ‘were in possession for sale,’ because of the quantity in one container. There was no cross-examination of the officer, nor was his testimony otherwise rebutted.

Testifying in his own behalf, defendant denied any knowledge regarding the presence of the envelope or its contents, and stated he was driving a borrowed car. He also stated that he had been with the two girls at sundry places during the time prior to his being stopped. Upon examination by his own counsel, defendant admitted that he had seen other plastic bags like the ones found by Olmstead and that he knew they contained ‘some kind of drug.’ On cross-examination he testified that he had been in the presence of persons who used drugs and that he was familiar with the smell of marijuana.

The Search

Defendant urges that the search which produced the plastic bags containing methedrine was an impermissible general search for the purpose of ferreting out evidence of unrelated crimes. In considering this contention we first observe that the stop for the traffic violation, without more, did not justify a search of the vehicle. (People v. Weitzer, 269 Cal.App.2d 274, 290, 75 Cal.Rptr. 318; People v. Van Sanden, 267 Cal.App.2d 662, 664, 73 Cal.Rptr. 359; Bergeron v. Superior Court, 2 Cal.App.3d 433, 435, 82 Cal.Rptr. 711; see People v. Graves, 263 Cal.App.2d 719, 732, 70 Cal.Rptr. 509.) But here we do have something more. The odor of burning marijuana recognized by the officers4 afforded probable cause to believe that the car contained contraband, and that its occupants were the probable offenders. (People v. Christensen, 2 Cal.App.3d 546, 548, 83 Cal.Rptr. 17; People v. Nichols, 1 Cal.App.3d 173, 175–176, 81 Cal.Rptr. 481.) The officers thus had legal cause to arrest the offenders. (People v. Nichols, supra; People v. Layne, 235 Cal.App.2d 188, 193, 45 Cal.Rptr. 110; Vaillancourt v. Superior Court, 273 Cal.App.2d 791, 797, 78 Cal.Rptr. 615; People v. Gann, 267 Cal.App.2d 811, 812–813, 73 Cal.Rptr. 502.) Assuming however, that they did not, at that time, have cause to arrest the occupants of the car, the officers, having smelled the burning marijuana in the car, were justified in searching it since they had reasonable and probable cause to believe that the search would produce either the instrumentality of, or evidence of the crime. (Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538; People v. Madero, 264 Cal.App.2d 107, 111, 70 Cal.Rptr. 159; People v. Legg, 258 Cal.App.2d 52, 55, 65 Cal.Rptr. 541; People v. Christensen, supra.) As observed in Dyke, ‘Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. [Citations.] * * * [where] the officers conducting the search have ‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.' (391 U.S. at p. 221, 88 S.Ct. at p. 1475.)

Upon searching the vehicle and finding the marijuana seed the officers were clearly justified in placing defendant under arrest as the person in possession of the vehicle. (See Fraher v. Superior Court, 272 Cal.App.2d 155, 163, 77 Cal.Rptr. 366; People v. Schultz, 263 Cal.App.2d 110, 114, 69 Cal.Rptr. 293; People v. Nichols, supra, 1 Cal.App.3d 173, 176–177, 81 Cal.Rptr. 481; and see People v. White, 71 Cal.2d 80, 82–83, 75 Cal.Rptr. 208, 450 P.2d 600.) Having arrested him for possession of marijuana, the officers were clearly justified in continuing the search of the vehicle as an incident of that arrest. (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Gil, 248 Cal.App.2d 189, 192, 56 Cal.Rptr. 88; People v. Webb, 66 Cal.2d 107, 124, 56 Cal.Rptr. 902, 424 P.2d 342.) The fact that evidence of a different crime was discovered in the course of the search for evidence of the crime for which he was arrested does not render the search constitutionally suspect. (People v. Gil, supra, 248 Cal.App.2d at p. 192, 56 Cal.Rptr. 88; People v. Galceran, 178 Cal.App.2d 312, 317, 2 Cal.Rptr. 901; People v. Robinson, supra; People v. Kraps, 238 Cal.App.2d 675, 680, 48 Cal.Rptr. 89.) Accordingly, the search which resulted in the finding of the envelope and in its being opened and was entirely justified, notwithstanding it may have been impelled by the officer's curiosity.

The conclusion herein reached is not inapposite to the holding in People v. Marshall, 69 Cal.2d 51, 56–57, 59, 69 Cal.Rptr. 585, 442 P.2d 665, and Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436. These cases are distinguishable on the basis that there it was held that a warrantless entry to seize contraband is not permissible on the probable cause that contraband is present supplied by the officer's sense of smell, while in the instant case the warrantless entry is permissible in order to make an arrest based on such probable cause. (See People v. Nichols, supra, 1 Cal.App.3d 173, 176–177, 81 Cal.Rptr. 481; People v. Christensen, supra, 2 Cal.App.3d 546, 548–549, 83 Cal.Rptr. 17; Vaillancourt v. Superior Court, supra, 273 Cal.App.2d 791, 796–797, 78 Cal.Rptr. 615; and see People v. Marshall, supra, 69 Cal.2d at p. 57, fn. 2, 69 Cal.Rptr. 585, 442 P.2d 665.) Here the smell of burnt marijuana in a vehicle in which three persons were visibly present told the officers that the crime of possessing marijuana was being committed by one or all of these persons in the officers' presence. (See People v. Nichols, supra, 1 Cal.App.3d at p. 177, 81 Cal.Rptr. 481; People v. Bock Leung Chew, 142 Cal.App.2d 400, 402–403, 298 P.2d 118; and see Vaillancourt v. Superior Court, supra.)5

Substantial Evidence

The jury found defendant guilty of possession of a restricted dangerous drug (methedrine) for purposes of sale. Defendant contends that the evidence below adduced was legally insufficient to convict him. He asserts that the record fails to disclose any evidence of sale or offers thereof made by defendant.

We observe in preface that our inquiry into substantiality of evidence begins and ends with an inquiry into whether there is any supportive evidence. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784–785, 59 Cal.Rptr. 141, 427 P.2d 805; Marshall v. Marshall, 232 Cal.App.2d 232, 246, 42 Cal.Rptr. 686; Fields v. Riley, 1 Cal.App.3d 308, 314, 81 Cal.Rptr. 671.) And, we must here view the evidence in the light most favorable to the People, the prevailing party. (People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321; People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049; People v. Ward, 266 Cal.App.2d 241, 253, 72 Cal.Rptr. 46.) Indeed, if the circumstances and evidence reasonably justify the lower court's conclusion, we are without power to disturb the conviction even if a contrary conclusion is tenable. (People v. Redmond, supra, 71 Cal.2d at p. 755, 79 Cal.Rptr. 529, 457 P.2d 321; People v. Robillard, 55 Cal.2d 88, 93, 10 Cal.Rptr. 167, 358 P.2d 295; People v. Teale, 70 Cal.2d 497, 505, 75 Cal.Rptr. 172, 450 P.2d 564.) We may not reweigh the evidence. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Teale, supra, 70 Cal.2d at p. 505, 75 Cal.Rptr. 172, 450 P.2d 564; People v. Crary, 265 Cal.App.2d 534, 538, 71 Cal.Rptr. 457.)

Turning then to consideration of defendant's contention, we observe that the decisional precedents applicable to crimes involving the possession of narcotics for sale (i. e., § 11530.5) are applicable to possession of a restricted dangerous drug for sale. (See People v. Allen, 254 Cal.App.2d 597, 600–601, 62 Cal.Rptr. 235; People v. Cline, 270 Cal.App.2d 328, 333, 75 Cal.Rptr. 459.) Accordingly, the elements of the crime of possession for sale of dangerous restricted drugs are: (1) possession of the dangerous drug, (2) for the purpose of selling it. (People v. Allen, supra, 254 Cal.App.2d at p. 602, 62 Cal.Rptr. 235; see also People v. Bravo, 237 Cal.App.2d 459, 461, 46 Cal.Rptr. 921; People v. Robbins, 225 Cal.App.2d 177, 183–184, 37 Cal.Rptr. 244.)

Adverting to the element of possession, it was incumbent upon the People to prove that defendant exercised dominion and control over the drug with knowledge of its presence and narcotic character. (People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Bowens, 229 Cal.App.2d 590, 594, 40 Cal.Rptr. 435; People v. Melendez, 225 Cal.App.2d 67, 70, 37 Cal.Rptr. 126.) Such proof may be shown from circumstantial evidence and the inferences derivable there from. (People v. Roberts, 228 Cal.App.2d 722, 726, 39 Cal.Rptr. 843; People v. Lloyd, 253 Cal.App.2d 236, 240, 61 Cal.Rptr. 138; People v. Showers, 68 Cal.2d 639, 644–645, 68 Cal.Rptr. 459, 462, 440 P.2d 939, 942.)

Here, there was circumstantial evidence from which the jury could infer that defendant had dominion and control of the drug with knowledge of its presence. The envelope in which it was contained was located and visible on the tape deck below the dashboard of a vehicle which defendant was driving and which was in his possession and control. ‘Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control.’ (People v. Showers, supra, 68 Cal.2d 639, 644, 68 Cal .Rptr. 459, 462, 440 P.2d 939, 942; People v. Francis, 71 Cal.2d 66, 71, 75 Cal.Rptr. 199, 450 P.2d 591.) Possession may also be imputed where the contraband is subject to the joint dominion and control of the accused and another. (People v. Francis, supra; People v. Jackson, 191 Cal.App.2d 296, 302, 12 Cal.Rptr. 748.) Accordingly, the accused may not assert that he did not have such possession because one of the female occupants was seated in the front seat of the car in close proximity to the location in which the contraband was found. Moreover, the presence of contraband in an automobile creates an inference of knowledge of its presence on the part of the vehicle's owner or his entrustee which casts the burden of going forward with an explanation on the owner or entrustee. (People v. Waller, 260 Cal.App.2d 131, 142, 67 Cal.Rptr. 8; see Rideout v. Superior Court, 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197.) The sufficiency of such explanation is for the trier of fact. (People v. Waller, supra.)

With regard to knowledge of the narcotic character of the substance found in the envelope, such knowledge could be inferred from the fact that defendant testified he knew that the plastic bags contained ‘some kind of drug’ and his admission on cross-examination that he had been in the presence of persons who used drugs.

Turning to the requirement of sale purpose, we observe that such purpose may be inferred from circumstantial evidence. (People v. Miller, 176 Cal.App.2d 571, 577, 1 Cal.Rptr. 656; People v. De La Torre, 268 Cal.App.2d 122, 126, 73 Cal.Rptr. 704.) Such purpose may be reasonably inferred from evidence regarding the quantity found, manner of packaging, narcotic equipment found, and expert opinion. (People v. De La Torre, supra, at p. 126, 73 Cal.Rptr. 704; see People v. Aguilar, 232 Cal.App.2d 173, 178, 42 Cal.Rptr. 666; People v. Rodriguez, 238 Cal.App.2d 682, 687, 48 Cal.Rptr. 117; People v. Allen, supra, 254 Cal.App.2d 597, 603, 62 Cal.Rptr. 235.) In Allen it was held a sale purpose from evidence of a large quantity of narcotic found in the defendant's vehicle and an expert's testimony that such quantity was indicative of a sale. (At p. 603, 62 Cal.Rptr. 235.)6 Similarly, in People v. Bryant, 267 Cal.App.2d 407, 408–409, 72 Cal.Rptr. 860, a purpose of sale was found from the finding of a large quantity of narcotic packaged in a manner normally indicative of sale with expert opinion of such sale purpose.7

In the present case 4.5 grams of methedrine was found, an amount sufficient to produce 450 capsules. The methedrine was wrapped in eight separate plastic bags, commonly referred to as ‘bindles.’ The going price for each of these bindles was $10. Each ‘bindle’ could provide four injections. Ordinarily a person can take only one injection per day. Out of 200 methedrine cases which had gone through the sheriff's office in the year preceding the instant trial, the present case involved the largest quantity of methedrine. The ordinary case involved one ‘bindle’ and the next largest case involved two or possibly three ‘bindles.’ These circumstances, coupled with the testimony of an expert witness that in his opinion and from his experience the quantity found indicated that the methedrine was possessed for purposes of sale, are amenable to the inference that the subject methedrine was possessed for purpose of sale. Such evidence was of ponderable, credible and solid value to give it the substantiality which requires us to sustain the findings that the contraband was possessed for purposes of sale. (See People v. Bassett, 69 Cal.2d 122, 138–139, 70 Cal.Rptr. 193, 443 P.2d 777; People v. Redmond, supra, 71 Cal.2d 745, 755–756, 79 Cal.Rptr. 529, 457 P.2d 321.)

Specific Intent Instruction

Defendant asserts that the trial court committed prejudicial error in failing to instruct sua sponte that a specific intent to sell the subject drug was an essential element of the crime charged. In considering this contention we observe that no case has come to our attention holding that the crime defined in section 11911 is a specific intent crime. It has been held that a specific intent to furnish a narcotic is an essential element of the crime of furnishing a narcotic as defined in section 11501 (People v. Holquin, 229 Cal.App.2d 398, 403, 40 Cal.Rptr. 364), and that the crime of offering to sell a narcotic as defined in that section, requires a specific intent to sell a narcotic. (People v. Brown, 55 Cal.2d 64, 68, 9 Cal.Rptr. 816, 357 P.2d 1072 [cert. den. 366 U.S. 970, 81 S.Ct. 1932, 6 L.Ed.2d 1259]; People v. Jackson, 59 Cal.2d 468, 469, 30 Cal.Rptr. 329, 381 P.2d 1; People v. Monteverde, 236 Cal.App.2d 630, 637, 46 Cal.Rptr. 206.) Accordingly, upon the analogy of these cases and our interpretation of the meaning of section 11911, we conclude that the crime therein proscribed is a specific intent crime.

The instant crime proscribes ‘possession for sale.’ As already noted, the term ‘possession for sale’ has been interpreted to mean possession for the purpose of selling the restricted drug. (People v. Allen, supra, 254 Cal.App.2d 597, 602, 62 Cal.Rptr. 235; see People v. Bravo, supra, 237 Cal.App.2d 459, 461, 46 Cal.Rptr. 921; People v. Robbins, supra, 225 Cal.App.2d 177, 183–184, 37 Cal.Rptr. 244.) The word ‘purpose’ is synonymous with ‘intent’ (Estate of Olmsted, 122 Cal. 224, 232, 54 P. 745; People v. Ashley, 42 Cal.2d 246, 260, fn. 2, 267 P.2d 271; People v. Bailey, 72 Cal.App.2d Supp. 880, 883, 165 P.2d 558), and with ‘the end sought,’ ‘an object to be attained,’ ‘an intention.’ (Andresen v. Board of Supervisors, 235 Cal.App.2d 436, 442, 45 Cal.Rptr. 306, 312.) It means “that which a person sets before himself as an object to be reached or accomplished; the end or aim to which the view is directed in any plan, manner, or execution.'‘ (In re McCoy, 10 Cal.App. 116, 129, 101 P. 419, 425; Andresen v. Board of Supervisors, supra.) Accordingly, when we read into the meaning of section 11911, as we must, that ‘possession for sale’ means ‘possession for the purposes of sale,’ it is clear that the specific intent to sell the restricted dangerous drug is an essential element of the crime of possession for sale as defined in the statute.

Where specific intent is a requisite element of any crime, a specific intent instruction must be given by the court on its own motion. (People v. Ford, 60 Cal.2d 772, 793, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Stone, 213 Cal.App.2d 260, 263–264, 28 Cal.Rptr. 522; People v. Seay, 179 Cal.App.2d 362, 363, 3 Cal.Rptr. 769.) The failure to give such an instruction constitutes error. (People v. Ford, supra; People v. Sanchez, 35 Cal.2d 522, 526–528, 219 P.2d 9; People v. Seay, supra.)

In the instant case the trial court defined the meaning of ‘possession’ of a restricted drug, but, with respect to the crime of ‘possession for sale’ instructed only that ‘Every person who possesses for sale any restricted dangerous drug is guilty of a crime.’ The court did not instruct that there must exist in the mind of one who possesses such drug the specific intent to sell the drug, but instructed in terms of general intent as follows: ‘To constitute criminal intent it is not necessary that there should exist an intent to violate the law. Where a person intentionally does that which the law declares to be a crime, he is acting with criminal intent, even though he may not know that his act or conduct is unlawful.’

The instruction on general intent which the court gave did not suffice because proof of specific intent is an element of the crime charged in section 11911. It is error to instruct on general criminal intent without explanation or qualification where a specific intent is an element of the corpus delicti of the crime charged. (People v. Zerillo, 36 Cal.2d 222, 231–232, 223 P.2d 223; People v. Hill, 67 Cal.2d 105, 118, 60 Cal.Rptr. 234, 429 P.2d 586; People v. Holquin, supra, 229 Cal.App.2d 398, 403, 40 Cal.Rptr. 364.)

We are thus projected to the question whether the error resulted in a miscarriage of justice within the meaning of article VI, section 13 of the California Constitution. If it is probable that had the court given the correct instructions the jury would not have returned the verdict complained of, there is a miscarriage of justice within the meaning of the constitutional provision. (See People v. Rogers, 22 Cal.2d 787, 807, 141 P.2d 722; People v. Hamilton, 33 Cal.2d 45, 51, 198 P.2d 873.) Accordingly, an error in an instruction which ordinarily would not prejudice the rights of a defendant may justify a reversal of the judgment where the jury is misdirected or misled upon an issue vital to the defense and the evidence does not point unerringly to the guilt of the accused. (People v. Rogers, supra; People v. Robinson, 61 Cal.2d 373, 406, 38 Cal.Rptr. 890, 392 P.2d 970.)

In the present case we do not believe that had the court given a specific intent instruction with respect to the crime of possession for sale, the jury would not have returned the verdict finding defendant guilty of that crime. We observe that in this case defendant was charged in count one of the information with possession of a restricted dangerous drug in violation of section 11910, and in count two of the information with possession of such a drug for sale in violation of section 11911. The court instructed that the information did not charge two separate offenses but, in effect, charged that the defendant committed one or the other of such offenses. Here the jury found that defendant committed the crime charged in count two rather than the crime of mere possession as charged in count one. It is apparent that the jury understood the distinction between the two offenses. The evidence points ‘unerringly’ not only to defendant's possession of the methedrine with knowledge of its narcotic character, but also to his guilt of possession of the methedrine for the purpose of selling it. The uncontradicted evidence that the large quantity of methedrine in the manner in which it was packaged was indicative of possession for purposes of sale was so overwhelming as to make it highly improbable that a verdict other than guilty on count two could have been returned had the instruction on specific intent been given. We perceive, moreover, that the jury was not misled on any issue vital to the defense. That defense was predicated entirely upon the denial of possession. Finally, we observe that it is significant that defendant did not raise any objection to the instructions in connection with his motion for new trial.

Effective Assistance of Counsel

Defendant urges, on a number of grounds, that he was denied the effective assistance of counsel. He first suggests that his trial counsel's pretrial stipulation with the People dismissing codefendant Slaight from the trial and agreeing not to call her as a witness created a prejudicial conflict of interest and deprived him of the crucial defense of placing the guilt on Slaight.

Although we well recognize the rules that where a defendant has had counsel representing more than one defendant and such multiple representation creates a conflict of interest, the defendant is deprived of effective counsel (see People v. Chacon, 69 Cal.2d 765, 774, 73 Cal.Rptr. 10, 477 P.2d 106; People v. Robinson, 42 Cal.2d 741, 745–748, 269 P.2d 6; People v. Douglas, 61 Cal.2d 430, 437, 38 Cal.Rptr. 884, 392 P.2d 964) and that such conflict and ineffectiveness may be urged on appeal for the first time (People v. George, 259 Cal.App.2d 424, 432, 66 Cal.Rptr. 442; People v. Chacon, supra, 69 Cal.2d at p. 774, 73 Cal.Rptr. 10, 477 P.2d 106; People v. Mitchell, 1 Cal.App.3d 35, 38, 81 Cal.Rptr. 478), still an actual, demonstrable and injurious conflict must exist before a defendant is deprived of effective counsel. (People v. George, supra, 259 Cal.App.2d at p. 432, 66 Cal.Rptr. 442; People v. Odom, 236 Cal.App.2d 876, 879–880, 46 Cal.Rptr. 453.) On appellate review, we are to use hindsight to see if such conflict in fact existed. (People v. Chacon, supra, 69 Cal.2d at p. 774, 73 Cal.Rptr. 10, 477 P.2d 106; People v. Mitchell, supra, 1 Cal.App.3d at p. 38, 81 Cal.Rptr. 478.) It does not appear to have existed here.

While the kinds of conflicts defendant here alleges can well constitute prejudicial error,8 the potential prejudice from defense counsel's stipulation appears to have been cured. At trial, the following transpired: The court was apprised that the remaining two defendants were not aware remaining two defendants were not aware of the preclusive effect of the prior stipulation. They wished to have Slaight testify. Accordingly, the court vacated the stipulation and told defense counsel that Slaight could be called. And, although it appears that Slaight could not be secured, defense counsel and defendants, after a thorough explanation as to the probable consequences, decided it was in their best interest not to call Slaight. Such decision appears clearly to have been a matter of trial tactic and is therefore beyond review. (People v. Silva, 266 Cal.App.2d 165, 175, 72 Cal.Rptr. 38; People v. Brooks, 64 Cal.2d 130, 140, 48 Cal.Rptr. 879, 410 P.2d 383; People v. Lucas, 1 Cal.App.3d 637, 644, 81 Cal.Rptr. 840; People v. Perry, 271 Cal.App.2d 84, 113, 76 Cal.Rptr. 725.)

Defendant next urges ineffective counsel due to defense counsel's failure to object to the expert witness' statement that the amount of drugs found in defendant's vehicle was the largest found that year. As already pointed out, the quantity of narcotics possessed is relevant to the charge of possession for sale. (People v. Allen, supra, 254 Cal.App.2d 597, 603, 62 Cal.Rptr. 235; People v. Bryant, supra, 267 Cal.App.2d 407, 408–409, 72 Cal.Rptr. 860.) Since that evidence was adduced by a properly qualified expert witness, there was no basis for a valid objection. (See People v. Curtis, 232 Cal.App.2d 859, 869, 43 Cal.Rptr. 286; People v. La Vergne, 64 Cal.2d 265, 271, 49 Cal.Rptr. 557, 411 P.2d 309.) Counsel's failure to object may not, therefore, be charged to incompetence.

Defendant also alleges ineffective counsel because of the failure to move for a new trial because of the jury's ‘inconsistent verdict.’ That inconsistency is alleged to exist because the jury found defendant not guilty of possession but guilty of possession for sale. We have already alluded to the trial court's instructions in this regard.9 That instruction contained a correct statement of the law. In People v. Grant, 1 Cal.App.3d 563, 571, 81 Cal.Rptr. 812, we held that possession and possession for sale of narcotics (§§ 11500 and 11500.5) were lesser and greater included offenses, respectively, and, therefore, that the defendant could only be convicted of one of such offenses. (See People v. Greer, 30 Cal.2d 589, 601, 184 P.2d 512; People v. Blue, 161 Cal.App.2d 1, 4, 326 P.2d 183 [disapproved on other grounds, People v. Tideman, 57 Cal.2d 574, 587, 21 Cal.Rptr. 207, 370 P.2d 1007]; People v. Mims, 136 Cal.App.2d 828, 830, 289 P.2d 539.)

Defendant alleges, further, that trial counsel was ineffective because he failed to object to the court's ‘incorrect’ calculation that 4.5 grams would produce 450 pills. The record discloses, from the expert testimony adduced, that the court was mathematically correct. We, therefore, see no prejudice in the court's statement.

Prosecutor's Alleged Misconduct

Defendant urges prejudice from the alleged misconduct by the prosecutor in his closing argument. The record does not, however, contain the prosecutor's closing argument. Accordingly, these alleged assignments of error may not properly be urged on appeal. (See People v. Fleming, 166 Cal. 357, 376–377, 136 P. 291; People v. Shaffer, 182 Cal.App.2d 39, 45, 5 Cal.Rptr. 844; People v. Sorrentino, 146 Cal.App.2d 149, 157, 303 P.2d 859.) We note that the reference in the record to the prosecutor's remarks as to his personal feelings were made at the time of sentencing. At the time these remarks were made the prosecutor denied that he had expressed his personal feelings to the jury and insisted that he had only argued the deductions that could be drawn from the evidence. We perceive, moreover, that the epithets which defendant alleges were made by the prosecution to the jury constituted permissible prosecutorial epithets. (See People v. Wein, 50 Cal.2d 383, 396, 326 P.2d 457 [disapproved on other grounds, People v. Daniels, 71 Cal.2d 1119, 1126–1127], 80 Cal.Rptr. 897, 459 P.2d 225; People v. Harris, 219 Cal. 727, 732–733, 28 P.2d 906; People v. Rodriguez, 10 Cal.App.3d 18, 36, 88 Cal.Rptr. 789.)10

The order is affirmed.

FOOTNOTES

1.  Defendant appeals from the final judgment of conviction and the order granting probation. An order granting probation is deemed to be a final judgment for purposes of appeal. (Pen.Code § 1237, subd. 1.)

2.  Health and Safety Code section 11911, in pertinent part, provides as follows: ‘* * * every person who possesses for sale any restricted dangerous drug shall be punished by imprisonment in the state prison * * *.’All statutory references hereinafter made are to the Health and Safety Code unless otherwise indicated.

3.  Subsequent laboratory tests indicated that the seed was marijuana seed.

4.  Officer DeVaney testified that he had smelled marijuana on previous occasions and that he had made 50 to 60 arrests for marijuana. Officer Olmstead's testimony that ‘There was a distinct odor of freshly burned marijuana coming from within the vehicle’ was not challenged.

5.  We observe, in passing that defendant's assertion that there is error in the court's denial of his Penal Code section 995 motion cannot be considered by us since the record of the preliminary examination is not before us. (See People v. Chavez, 208 Cal.App.2d 248, 253, 24 Cal.Rptr. 895; People v. Scott, 24 Cal.2d 774, 777, 151 P.2d 517; People v. Garza, 160 Cal.App.2d 538, 544, 325 P.2d 200.) And, in all events, the merits of defendant's illegal search argument have been treated above.

6.  To a similar effect, see People v. De La Torre, supra, 268 Cal.App.2d at p. 126, 73 Cal.Rptr. 704; People v. Aguilar, supra, 232 Cal.App.2d at p. 178, 42 Cal.Rptr. 666; People v. Rodriguez, supra, 238 Cal.App.2d at p. 687, 48 Cal.Rptr. 117; People v. Jackson, 241 Cal.App.2d 189, 194, 50 Cal.Rptr. 437, holding that the large quantity of narcotics found was alone sufficient to justify trying the defendant.

7.  See also People v. Coblentz, 229 Cal.App.2d 296, 302, 40 Cal.Rptr. 116; People v. Robbins, 225 Cal.App.2d 177, 184, 37 Cal.Rptr. 244; People v. Campuzano, 254 Cal.App.2d 52, 55, 61 Cal.Rptr. 695.

8.  Prejudicial conflict exists where defense counsel is prevented, because of multiple representation, from attacking a codefendant (see People v. Odom, supra, 236 Cal.App.2d at p. 878, 46 Cal.Rptr. 453; People v. Kerfoot, 184 Cal.App.2d 622, 626, 7 Cal.Rptr. 674); or where defense counsel is restricted in closing argument from attacking a codefendant. (People v. Odom, supra, 236 Cal.App.2d at p. 878, 46 Cal.Rptr. 453.)

9.  That instruction was, in relevant part, as follows: ‘The charges * * * do not charge two separate offenses, but, in effect, charge that the defendants committed one or the other of such offenses. If you find that the defendants committed an act or acts constituting one of the crimes so charged, you must then determine which of the offenses so charged was committed.’

10.  The prosecutor is alleged to have referred to defendant as a ‘pill peddler’ and a ‘terror to the community.’

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.