Walker

Defendant Leelen D. Walker was charged with possession of marijuana for sale in violation of Health and Safety Code section 11359, a felony, and convicted by a jury. During the trial, the superior court declined to instruct the jury that it could instead convict defendant of the lesser included offense of simple possession of less than 28.5 grams (one ounce) of marijuana, an infraction punishable by a $100 fine. (Health & Saf. Code, § 11357, subd. (b).) We hold the trial court prejudicially erred in omitting the instruction. Accordingly, we reverse defendant’s conviction.

BACKGROUND

On December 6, 2012, Los Angeles County Sheriff’s Sergeant Justin Diez observed defendant sitting in a car in a motel parking lot that for years had been used for gang loitering, prostitution and drug sales. A woman stood next to the car, conversing with defendant. When Diez approached the vehicle he detected the scent of fresh (unburnt) marijuana. A search of defendant’s person produced a medical marijuana card and cash totaling $249, consisting of a $100 bill, three $20 bills, four $10 bills, seven $5 bills, and fourteen $1 bills. Neither defendant nor the woman possessed any paraphernalia…