1 Filed 2/19/15 P. v. Conley CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Yolo)

----

THE PEOPLE, Plaintiff and Respondent,

v. CHAD MASEO CONLEY, Defendant and Appellant. C075095 (Super. Ct. No. CRF111818)

A jury found defendant Chad Maseo Conley guilty of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)) 1 and possession of mariju ana for sale (§ 11359). Sentenced to three years of incarceration, he a ppeals. He contends the trial court abused its discretion in admitting one of his prior convictions and his cell phone records as

1 Further undesignated statutory referen ces are to the Health and Safety Code.2 evidence at trial. He also contends the c ourt erred in failing to instruct fully on his defense. We reject thes e contentions and affirm. FACTS The Stop Early in the morning of April 8, 2011, Davis police officer Derek Russell stopped a blue Infiniti for expired registration. Aa ron German was the driver and defendant was the passenger. Defendant said the car was his. Russell smelled a strong odor of unburnt marijuana and asked if there was anything ille gal in the car. Defendant said he had a
cannabis card and two ounces of marijuana in his backpack. Russell asked defendant and German to step out of the ca r and searched both. Defendan t had $522 in wa dded up bills in his pocket. The denominations were $100 (1), $20 (19), $10 (2), $5 (2), $2 (4), and $1 (4). A search of the car revealed four baggie s of marijuana, two digital scales, a box of sandwich bags, and no drug paraphernalia for smoking. One of the scales had marijuana residue on it. The four baggies weighed 3.3, 3.18, 1.5, and .86 ounces, for a total of 8.8 ounces. Each tested pos itive for marijuana. Officer Russell believed defendant posse ssed marijuana for sale. He read
defendant his Miranda 2 rights and defendant said he understood and then gave a
statement as follows: He had come to Davis to pick up German. Ge rman said he had not been drinking so defendant let him drive. All of the marijuana was defendant’s, for his personal use. He had obtained a cannabis card after he ha d been arrested in Sacramento for marijuana sales; he was ju st off probation for selling ma rijuana and did not want to “get in trouble” again. When Russell asked defendant why he had so much marijuana,

2 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].3 defendant said he did not know, but conceded it was a “bad idea to bring that much marijuana to Davis.” Defendant also said it was common for him to carry cash. The Text Messages
Russell searched de fendant’s cell phone. 3 There was a text message from the previous evening. It read: “u got sum tree this nigga Zack s bro needs a $10 sack.” 4 Detective John Evans perfo rmed a forensic examinatio n of defendant’s cell phone pursuant to a search warrant. Between the af ternoon of April 4, 20 11 and the morning of defendant’s arrest on April 8, 2011, his phone had received 85 text messages and sent 23 messages. It had also made and received hundreds of calls during that time period, some
to the numbers from which te xt messages were sent. There were several text messages from someone known as Tre Mond. (1) “No gud? u still go ne to bring that.” (2) “Tell her 80.” (3) “No gud?” (4) “Na the tree i need dub . An i think sandys water br oke so i need asap.” (5) “Fuuuuu uuuck!” There were three responses. “Fell asleep out front of her house she’s not home.”
“I don’t have trees til friday.” “Tellin me.”

3 Defendant does not challenge this search. In Riley v. California (2014) __ U.S. __, __ [189 L.Ed.2d 430, 452], the Un ited States Supreme Court held that a search warrant is required to search a cell phone seized incident to arrest. In April 2011, when Officer Russell searched the cell phone, the search was authorized by the California Supreme Court’s decision in People v. Diaz (2011) 51 Cal.4th 84, which was decided three years before Riley and a few months before the search in question. Diaz was the clearly established law in this state at the time of th e search and the good faith exception to the warrant requirement applies to reasona ble reliance on binding precedent. ( Davis v. United States (2011) __ U.S. __, __ [1 80 L.Ed.2d 285, 302].)

4 All errors in spelling, grammar, etc., that appear in the reprinted text messages are in the originals.4 There were several text messag es from someone named Trina: (1)“My boy said around 4:30 he is gonna see his boy that got that for you he said 2200 for you since he has to make up 200 for the last tim e and I got 300 for you so 1900 all together.” (2) “Ricky has to wait for his boy with that dark to pull in town from sf he got some knew I guess he said are bringing him 5 of these so if you like it :) you can get more :)” (3) “He said for me to expect his call ar ound 6 but I got called to work 5 to 7 so it will be more like 7 but if your hungry come have a free buffet tonight is all you can eat at my spot i’ll hook you up free.” (4) “Ricky didn’t answer let me know when you wanna come pick up this bread.” (5) “Just wakin up i’ll call my boy.” (6) “He already sold out of that 5 he ha d I have to wait till his next batch I can call someone else but you need to th is reinversment I can just ask him to give me a little tree or the 200 if you want??” (7) “Ok I gotta let him know that you ju st want the 200 he w ill probably have me cover it and pay me back I will need a day or 2 if that’s the case unless he just shoots me
the cash so let me call him again hold up.”
A text was sent to Trina from defendant’s phone. “Still need that.” A second text said, “Ill just grab the 200.” There were two text messages sent by Jesse Clone. (1)“My ou tdoor guy said 875 if u know anyone.” 2) “I’m ready for ice cream whenever u got it.” There were two texts sent to Clone asking, “What’s good?” Texts from Tommy Erica included the following. (1) “Aye it tommy. Would u do 50 yellows for 3 a piece?” (2) “We’re here bro,” followed a few mi nutes later by, “Aye man I just drove all the way out here and wasted my c ousins gas. Thanks dude.”5 (3) Later that night, “If we came back out there would u rather want to give him a better price or gas money. Like deduct how much money u were gonna give him for gas.” (4) “Just to make sure, ur gonna pick up ur phone right? Im askin cause my cousin will literally disown me.” Other text messages included the following. “So what’s the busin ess? We still in motion or did we run into a red light? Let me know what’s up.” “I got somas fa cheap hit me up.” “I got beans.” Drug Expert Testimony Ryan Bellamy was a police officer with the Yolo County Na rcotic Enforcement Team (YONET), who had done undercover work . He qualified as a drug expert, and opined that defendant possessed the marijuana fo r sale. He found indicia of sales due to the quantity of the drug, the scales, packaging, and the qu antity of cash. He also considered the text messages in forming his op inion. Sandwich bags were often used as packaging material. He believed 7.7 ounces (the weight of the marijuana without the packaging) was a “long supply ” even for a frequent user. Bellamy testified a usual dose is .2 to .5 grams, and a dose lasted three to five hours. The quantity of marijuana defendant had would keep a user “consiste ntly high” for between 55 and 229 days, depending on the dosage unit and quality of the marijuana. Bellamy testified drug dealers were reluct ant to respond to text messages because they are aware that the polic e search phones on arrest. They will often respond by telephone call. He explained some of the slang used; “dank,” “tree” and “green” meant marijuana, “dub” was a $20 sack of marijuana, “ice cream” wa s a strain of marijuana, and “yellows” were a Vicodin-type pill. He explained how the text messages defendant received could be drug -related. For example, the me ssage about Ricky with “dark” probably meant “dank” or marijuana, and “thos e five for you” referred to five pounds of marijuana.6 The Defense
Defendant testified that he had a medical marijuana card and was the organizer of a medical marijuana collective with four members: himself, Zach Billingsley, Patrick Healy, and Doug Ellis (who had died). Defendant claimed he tried to follow the applicable law and not “get in trouble.” He had been in trouble in the past and had a conviction for possession of ma rijuana for sale. The $522 he had when stopped was payment for work he did for a tree comp any, but he always carried cash. Billingsley testified about his membership in the collective. He had never seen defendant sell marijuana to anyo ne outside the collective. DISCUSSION
I Admission of Prior Misconduct
Defendant contends the tr ial court abused its discretion in admitting his prior conviction for simple possession of marijuana. 5 He contends the only issue as to which it was relevant--knowledge of the nature of marijuana--was not in dispute, and the evidence was prejudicial because it was used to show his criminal propens ity and also involved
cocaine.
A. Background Prior to trial, the People sought to ad mit three prior convictions: possession of marijuana for sale; possession of a controlle d substance; and posse ssion of a controlled substance for sale. In addition to using th e priors for impeachme nt should defendant testify, the People sought ad mission in their case-in-chief under Evidence Code section

5 As we discuss post , the trial court did not actually admit the conviction ; rather, the trial court permitted evidence of the conduct underly ing the prior conviction. The fact of defendant’s conviction was never before the jury.7 1101, subdivision (b), to prove kn owledge and absence of mistake. 6 The trial court ruled the first and third convictions, the sales conv ictions, were admissib le “under 1101(b),” without further detail, after th e People withdrew their request for admission of the simple possession conviction. At trial, the People called Officer Mich ael Stoltzfus, who testified about a 2007 drug-related case involving defendant. A c itizen, who thought subjects were breaking into a car, hailed Stoltzfus. Defendant was ne arby and the officer asked him if it was his car; defendant said yes. The officer went after two other men a nd defendant began to walk away. Stoltzfus told him to stop. At this point in the testimony, the de fense asked to approach. Outside the presence of the jury, the court noted the cond uct being described related to the conviction
that it had ruled inadmissible. The court as ked the prosecutor, “Why are we getting into this?” The prosecutor admitted he had “mes sed up” and called the wrong officer. He
asked to be allowed to continue to elicit the facts because th e case, although it resulted in only a simple possession conviction, was a sales arrest and had similaritie s to this case. After confirming with the officer that the case was originally a sale s investigation (based on the amount of marijuana), the court aske d the defense what was the prejudice in admitting the testimony, and defense counsel re sponded, “Under traditional balancing, I suspect there is no[ne] . . . .” The prosecutor indicated the officers who could testify to
the two convictions the court had ruled admissi ble were unavailable to testify, as they were “cut loose a long time ago.” The court ruled that the People could pursue the line of

6 The reference to absence of mistake is puzzling. The People reference defendant’s failure to realize the “cards” were stolen, but there is no evidence of stolen medical marijuana cards or any other stolen cards in this case. As we detail post , the trial court instructed the jury th at the evidence could be consider ed only for that purpose (to prove intent to sell) and to prove defendant’s knowledge that marijuana was a controlled substance.8 questioning of Officer Stoltzfus, who could testify about his obser vations, but not the convictions, and ruled defendant’s other tw o convictions were now admissible only as impeachment. 7 Stoltzfus testified defendant gave his name as Bobbit, and Bobbit was on probation and thereby searchable. The offi cer searched defendant and found $998.40, mostly in $20 bills. Defendant had a baggie of white powd er, later determined to be cocaine, in his pants pocket. A search disclo sed 1.4 ounces of marijuana in the center
console of the car and a scal e. Defendant was arrested for possession for sale of marijuana. He volunteered to the officer that he had given a false name and said he did not sell drugs and used only ma rijuana, no other drugs. Later, the defense objected to the “playing of my client’s prior conviction.” Due to the prosecutor’s negligence, the People now had three prio rs to use for impeachment,
as well as evidence about de fendant’s possessing cocaine and using a fake name. In response to this concern, the trial court ex cluded use of the conviction for possession for sale of a controlled substance for impeachment.
The trial court instructed the jury that th e People presented evidence that defendant committed an earlier offense of posse ssion for sale of marijuana. If the jury
found defendant committed this offense, it could consider th e evidence “for the limited purpose of deciding whether or not in this ca se the defendant acted with the intent to sell

7 Although under the circumst ances we do not criticize the tr ial court’s self-described “equitable ruling,” we are compelled to note that it is incumbent upon the prosecutor to better prepare for trial. It is unacceptable fo r a prosecutor to succe ssfully seek to admit testimony (on a puzzling basis, as we have described) regarding certain events to be elicited from witnesses who were “cut l oose,” and instead elicit testimony from a different witness of events that were ru led inadmissible. “This case involves ‘ “a particularly unpardonable fault of the pr osecutor-unpreparedness.” ’ [Citation.]” ( Dietrick v. Superior Court (2013) 220 Cal.App.4th 1472, 1474.)9 marijuana or the defendant knew of the mari juana’s nature or char acter as a controlled
substance.”
B. The Law “Unlawful possession of a controlled s ubstance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [C itation.] Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presen ce and illegal characte r. [Citations.]” ( People v. Meza (1995) 38 Cal.App.4th 1741 , 1745-1746.) By pleading not guilty, defendant put at issue all the elements of the offenses. ( People v. Steele (2002) 27 Cal.4th 1230, 1243.) “Evidence Code section 1101, subdivision (a), generally prohibits the admission of evidence of a person's character or a trait of his or her character when offered to prove his or her conduct on a specified occasion.” ( People v. Avila (2006) 38 Cal.4th 491, 586.) Subdivision (b) of Eviden ce Code section 1101, howe ver, permits admission of defendant's past criminal acts when relevant to prove a material fact at issue, such as identity, intent, or knowledge. ( People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) “In prosecutions for drug offenses , evidence of prior drug us e and prior drug convictions is generally admissible under Evidence Code section 1101, subdivis ion (b), to establish that the drugs were possessed for sale ra ther than for personal use and to prove knowledge of the narcotic nature of the drugs. [Citation.]” ( People v. Williams (2009) 170 Cal.App.4th 587, 607 ( Williams ).) The admissibility of uncharged misconduct “depends on th e materiality of the fact sought to be proved, the tendency of the prio r crime to prove the ma terial fact, and the existence or absence of some other rule requiring exclusion.” ( People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) The admission of evidence under secti on 1101 is reviewed on appeal for an abuse of discretion. ( People v. Memro (1995) 11 Cal.4th 786, 864.)10 C. Analysis In an apparent failure to read the record closely, defendant argues at length that the
trial court erred when it admitted his co nviction for simple possession. However
defendant’s conviction was not admitted. Rather, th e court admitted only evidence of
defendant’s conduct in possessing marijuana for sale, wh ich it referred to as defendant’s “offense,” not that he was convicted of any cr ime. Defendant also misstates the purposes
for which the evidence was admitted. As we have noted, while the People offered knowledge and absence of mistake as the purposes for which the ev idence was admitted,
the trial court admitted the evidence to show in tent to sell and knowledge of the nature of marijuana, as evidence d by its instructions to the jury . As the defense closing argument recognized, intent to sell was th e primary issue in dispute. “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ [C itations.] ‘Since “substantial prejudicial effect [is] inherent in [suc h] evidence,” uncharged offens es are admissible only if they
have substantial probative value.’ [Citation.]” ( People v. Ewolt (1994) 7 Cal.4th 380, 404.) Because defendant has failed to addr ess the primary purpose--to show intent to sell--for which the disputed evidence was ad mitted, his argument th at the evidence was unduly prejudicial fails to persuade. Ev idence of defendant’s prior illegal conduct relating to marijuana sales was admissible to show his intent to sell the marijuana in his possession as well as his knowledge of the nature of marijuan a, both of which were at issue due to his not guilty plea. (See Williams, supra, 170 Cal.App.4th at p. 607.) We
find no abuse of discretion.
II Admission of Cell Phone Records
Defendant contends the tr ial court abused its discre tion in admitting, over his hearsay objection, cell phone records consis ting of call logs and text messages. He11 contends it was error to admit messages to which he did not resp ond, and the evidence was unreliable. For reasons we explain post , we find no abuse of discretion.
A. Background Defendant objected several times to the ad mission of the contents of text messages from his cell phone. The trial court overruled the objections, but also limited the jury’s consideration of the messages to their effect on defendant, instruc ting the jury, “Ladies and gentlemen, the message that was left on th e phone cannot be rece ived by the jury for the purpose of deciding whether the person who sent the message meant anything by it, but you can consider it for whether it would ha ve an effect on Mr. Conley, and whether it
would have caused him to take a ny later action that you might he ar about in th e case. [¶] But if it does not tie in that way for you, then you can’t use the eviden ce at all. [¶] So I’ll let it in just for this limit ed purpose of allowing you to have information so that you would then have in mind whether Mr. Conley later himself developed a particular state of mind regarding something that is at issue in this case.”
Detective Evans testified about several text messages on defendant’s phone. The drug expert relied in part on the text messa ges in reaching his opinion that defendant possessed the marijuana for sale. He explaine d how some of the text messages related to the sale of drugs.
B. The Law and Analysis Evidence Code section 1200, subdivision (a ) defines hearsay as “a statement that was made other than by a witness while testif ying at the hearing and that is offered to prove the truth of the matter stated.” “Excep t as provided by law, hearsay evidence is inadmissible.” ( Id. § 1200, subd. (b).) Requests ordi narily do not constitute hearsay because “[a] request, by itself, does not asse rt the truth of any fact . . . .” ( People v.
Jurado (2006) 38 Cal.4th 72, 117 ( Jurado ).) Prior to Jurado , California courts relied on differing theories to hold that phone calls requesting to purchase narcotics are not12 inadmissible hearsay. (Compare People v. Morgan (2005) 125 Cal.App.4th 935, 940– 941 ( Morgan ) with People v. Nealy (1991) 228 Cal.A pp.3d 447, 450-451 ( Nealy ).)
In Nealy , police officers testified they answered several phone calls from individuals interested in buying cocaine during their search of the defendant's residence. ( Nealy , supra , at 228 Cal.App.4th at pp. 450-451.) The court accepted the analogy to calls answered in bookmaking cases. In t hose cases, the California Supreme Court had ruled calls to suspected bookmakers were admissible not for the truth of the matter asserted, but as circumstantial evidence of the use to which the telephone was put. ( People v. Fischer (1957) 49 Cal.2d 442, 447.) The Nealy court concluded the calls were not hearsay, reasoning, “subject to Evidence Code section 352, a nd appropriate editing, when a police officer particip ates in a telephone conversa tion where he is lawfully executing a search warrant and hears a th ird person offer to purchase a controlled substance, testimony thereon is not made inad missible by the hearsay rule and may be received as circumstantial evidence tending to show the controlled substance seized at that location was possessed for purposes of sale.” ( Nealy, supra, at p. 452; see also People v. Ventura (1991) 1 Cal.App.4th 1515, 1518-1519.)
In Morgan , officers conducting a search warrant intercepted a telephone call made
to the defendant in wh ich the caller asked to buy narcotics. ( Morgan, supra, 125 Cal.App.4th at p. 939.) We recognized that such evidence is properly admitted over a hearsay objection, but adopted an alternative theory. We tr eated the implied assertion of
the caller’s statement--that the caller wanted drugs, with the inference that defendant could provide them--as a judicially created ex ception to the hearsa y rule, rather than nonhearsay, based on its unintentional message being presumptively more reliable than a direct assertion. ( Id . at p. 944.) Here, some of the text messages were ob vious requests to purchase drugs and, as such, not hearsay. ( Jurado, supra, 38 Cal.4th at p. 117.) Some, such as the expletive, were not hearsay because they were clearly not offered for the truth. Others, to the extent13 the jury considered them for their truth--to show drug dealing arra ngements--despite the limiting instruction, were admissible under the analysis of either Nealy or Morgan

. Consequently, there was no abuse of disc retion in admitting the text messages.
Nor did the admission of the text messa ges violate defendant's Sixth Amendment right to confront adverse witnesses, an ar gument defendant fails to develop properly. (AOB 28) The confrontation clause a pplies only to testimonial hearsay. ( Davis v. Washington (2006) 547 U.S. 813, 823-826 [165 L.Ed.2d 224].) Testimonial statements consist of “statements, made with some form ality, which, viewed ob jectively, are for the primary purpose of establishing and proving facts for possible use in a criminal trial.” ( People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14, italics omitted.) None of the text messages could remotely be viewed as statemen ts made for the purpose of establishing or proving facts at a criminal trial.
III
Instructional Error
Defendant contends the tria l court erred in failing to in struct fully on his medical marijuana defense. The trial court instructed : “Qualified patients who associate in order collectively to cultivate mariju ana, are not subject to conv iction under Health & Safety
Code section 11359 or 11360 for activities sole ly within the purpose of the collective.”
Defendant contends the cour t failed to instruct that he was entitled to possess and transport marijuana for his own personal use, as well as for the collective. With certain exceptions not applicable here , a trial court has a duty to instruct sua sponte on a defense if defendant is relying on the defense or there is substantial evidence to support the defense and it is not inconsistent with defenda nt’s theory of the case. ( People v. Dominguez (2006) 39 Cal.4th 1141, 1148.) Here, defendant was relying on
the defense to criminal sanctions under sec tions 11359 or 11360 provided by section 11362.775 for qualified patient s, persons with valid identification cards, and their designated primary caregivers who associate in order “collectively or cooperatively to14 cultivate marijuana for medical purposes.” Wh en stopped by police, however, defendant did not mention the collective, but claime d he had a cannabis card and all of the marijuana was his for personal use. “In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine wh at meaning the instruction given conveys.
The test is whether there is a reasonabl e likelihood that the jury understood the
instruction in a manner that viol ated the defendant's rights.” ( People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We find the ju ry would have understood the court’s instruction to provide a defense for the po ssession and transportation of marijuana that was for defendant’s personal medical us e as well as for the medical use of other members
of the collective. In any event, any error in the instruc tion was harmless because the jury resolved the key question--the purpose for which defe ndant possessed and transported marijuana-- adversely to him. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96-97 [error in failing to instruct on lesser included offe nse harmless, because factual question posed by omitted instruction resolved unfavorably to defendant].) The jury concluded that defendant possessed the marijuana for sale, a finding that is in consistent with a claim the drugs were possessed only for personal medicinal use. ( People v. Wright (2006) 40 Cal.4th 81, 98-99 [failure to give medical marijuana defense instruction harmless where jury found possession for sale].)15 DISPOSITION The judgment is affirmed.

DUARTE , J.

We concur:

BLEASE , Acting P. J.

BUTZ , J.