People v. Pendergrass

John Robin Pendergrass appeals from a judgment (order granting probation) entered on a jury verdict finding him guilty of cultivating marijuana (Health & Saf. Code, § 11358) and of possession of marijuana (Health & Saf. Code, § 11357, subd. (c)).

Facts

On October 20, 1982, Officer Finley went with other officers to 1637 Dallas Street in Modesto to serve a search warrant. As Officer Finley and Agent Matt approached the front door of the residence they were met by the codefendant, John Arrington. Arrington indicated that he lived in the residence. The officers informed Arrington of the search warrant; other officers then secured Arrington while Finley and Matt went to the doorway of the residence, stated that they had a search warrant for the residence, identified themselves as police officers, and then made entry into the residence. Appellant and Marilyn Green were found inside the residence and were shown the search warrant, which was also read to them.

The residence and environs were searched, and 11 large marijuana plants and 5 smaller ones were found growing in a lean-to addition located on the northeast side of the residence. Some of the plants were six to eight feet tall. The plants were being watered and cultivated. Marijuana was found in all of the rooms, including each bedroom, the kitchen, the living room and the laundry area. In total, 74 pounds of growing marijuana, 25 percent of which would be usable, and 9 bags of dried marijuana, having a gross weight of 25 pounds, were found. It was stipulated that appellant occupied the northwest bedroom, and codefendant Arrington the northeast bedroom. Nine bags of dried, cured marijuana were found in a large grocery bag in appellant’s bedroom, together with a set of scales.

Officer Finley testified that the normal amount that people would buy or sell in a single transaction on the street would be anywhere from a quarter-pound down to a quarter-ounce “lid,” and that a lid would sell for approximately $25 and would make between 25 and 30 heavy marijuana cigarettes or 50 light marijuana cigarettes. Officer Finley also testified that the scales found in appellant’s closet would be used to weigh the marijuana. The value of the marijuana found was estimated to be $55,500.

The premises and the items seized were not processed for fingerprints. A calendar was seized, but there were no “tote” sheets, and no large amount of money was found in the residence. The calendar had entries on it that indicated that it might have something to do with the marijuana. None of

Appellant was advised of and waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) rights following his arrest. When asked about the marijuana that was being cultivated and processed inside the house, appellant said he did not know anything about it but he had assisted in the watering of the plants. He said he did not know who the marijuana belonged to. When asked about the large quantity of marijuana found in his closet, appellant stated he did not want to talk about it.

Defense

Testifying for the defense were the defendant, Pendergrass, Arrington and Cheryl Arrington, wife of the codefendant and sister of appellant. Appellant introduced evidence to show that he seldom smoked marijuana, that he was seldom at the house, that although his belongings were in the residence most of the time he did not maintain a permanent residence there, and that all marijuana at the house belonged to the codefendant, Arrington. Appellant and Arrington frequently argued over marijuana. Appellant kept living there only because he could not afford to go anywhere else. Ms. Arrington and the codefendant testified that appellant had nothing to do with the marijuana in the house. Codefendant Arrington admitted that he owned all of the marijuana found at the house; that he was the sole caretaker of the growing plants; that he alone picked the leaves and dried them; and that appellant never watered any of the plants. He had seen appellant smoke marijuana on occasion, but it was not provided by Arrington.

Appellant knew that Arrington was growing and cultivating marijuana. But appellant denied that he or his sister watered the plants. He admitted smoking marijuana on occasion when codefendant Arrington offered him a “joint.” Appellant admitted that he lied to Officer Finley when he told him he did not know whose marijuana plants they were. But appellant denied he told Officer Finley that he watered the plants.

Appellant further testified that he and the codefendant were the sole occupants of the residence in October. However, he could not recall if his sister was still there on October 5. Appellant’s sister told him that the calendar entries for October 5 and 7, which state “attempt,” were hers. Codefendant Arrington did not believe the entry “attempt” of October 5 was his wife’s. Appellant denied that any of the calendar entries were his.

Upon analysis, however, we conclude that the well-reasoned opinion in the recent case of People v. Forbes (1985) 175 Cal.App.3d 807 [ 221 Cal.Rptr. 275 ] (review den. Mar. 16, 1986) announces the correct law. We will follow that case. In Forbes, the Yarber instruction was given by the trial court, and the court directly held that it was adequate. We quote extensively from the Forbes opinion as it is dispositive of this case.

“In holding the unmodified CALJIC No. 3.01 to be inadequate, the Beeman court proposed a model instruction of its own making. It had no occasion to determine whether the Yarber instruction would have been adequate, that instruction having been refused by the trial court. In choosing to formulate its own instruction, however, the court commented that the Yarber instruction and a pre-1974 version of CALJIC No. 3.01 were both ‘sufficiently ambiguous to conceivably permit conviction upon a finding of an intentional act which aids, without necessarily requiring a finding of an intent to encourage or facilitate the criminal offense.’ (Beeman, supra, 35 Cal.3d 547 , 561.) The court did not elaborate on the perceived ambiguity or attempt in any way to distinguish between the Yarber instruction and the former CALJIC instruction, which, instead of containing the word ‘intentionally,’ used the vague phrase ‘knowingly and with criminal intent.’ {Id., at p. 555.)

“We do not view the Beeman court’s comment as indicating that the giving of a Yarber instruction constitutes error. The instruction is a vast improvement over the unmodified CALJIC No. 3.01 and, we believe, adequately conveys the requisite intent. Stripped to its essentials, the Yarber instruction requires that the person, by his or her act or advice with knowledge of the unlawful purpose of the perpetrator, ‘intentionally aids, promotes, encourages or instigates’ the crime. With all due respect, we fail to see how the instruction even ‘conceivably’ permits a finding of an intentional act without a finding of intent to encourage or facilitate. The adverb ‘intentionally’ immediately precedes the verbs ‘aids, promotes, encourages or instigates’; it does not modify the nouns ‘act or advice’ and, indeed, could not do so gramatically.

“What concerned the court in Beeman was that an improperly instructed jury could find it sufficient that the defendant intentionally acted and thereby