P. v. Sanders

P. v. Sanders

Filed 8/18/08 P. v. Sanders 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

THE PEOPLE, Plaintiff and Respondent, v. AARON JAMES SANDERS, Defendant and Appellant.

C055421 (Super. Ct. No. 06F10158)

Defendant Aaron James Sanders was found guilty by a jury of possession of marijuana for sale. (Health & Saf. Code,  11359.)^[1] He waived jury trial on allegations that he had a prior strike conviction (Pen. Code,  667, subds. (b)-(i), 1170.12) and had served three prior prison terms (Pen. Code,  667.5, subd. (b)), and the trial court found these allegations true. Probation was denied and defendant was sentenced to state prison for a term of four years, comprised of a middle term of two years on the underlying offense, doubled pursuant to the three strikes law. The court struck the punishment for defendants three prior prison terms.

Defendant appeals, contending the trial court erroneously limited the affirmative defense provided under the Compassionate Use Act of 1996 ( 11362.5 et seq.) to the lesser included offense of simple possession of more than an ounce of marijuana. We shall affirm.

FACTUAL BACKGROUND

With the use of a surveillance camera, Sacramento City Police Officer Larry Borja observed defendant, who was sitting on a bench in a high narcotic area, reach into his right inside jacket pocket and hand something to an individual who had just walked up to him. The individual handed defendant something, which he placed in the same jacket pocket. The individual then walked away.

Defendant was detained and handcuffed. When he was asked by Officer Borja if he had identification, defendant motioned to the right side of his jacket. In defendants inside right jacket pocket, Officer Borja found a $100 bill and two small baggies containing just under five grams of marijuana. An additional 49 small Ziploc baggies containing a total of 47.4 grams of marijuana were located in defendants outside jacket pocket. A small scale and two more baggies of marijuana containing a total of approximately 120 grams of marijuana were found inside a paper bag in defendants backpack. The total weight of marijuana discovered during the search was approximately six ounces. In addition to the $100 bill found in defendants jacket pocket, defendant had $1,000 in the coin pocket of his pants, consisting of five $100 bills, one $50 bill, twenty-two $20 bills and a $10 bill. Defendant also had a bottle of insulin and a syringe. In addition, defendant had a cannabis buyer card and recommendation paperwork for marijuana. The search did not reveal any pipes, rolling papers or other items that could be used to ingest marijuana.

At defendants trial, an expert on the sale and use of marijuana testified that the large number of individual Ziploc baggies in defendants possession each containing about one gram of marijuana‑‑an amount that would sell for $15 to $20 each in a quick sale‑‑indicated the marijuana was possessed for sale rather than personal use. The fact that defendant had multiple $20 bills suggested the bills were proceeds from transactions involving these quantities. Other factors suggesting the marijuana was possessed for sale included the quantity of marijuana combined with the amount of money in defendants possession and the fact that he did not live in the area, the presence of a scale, the absence of any items for ingesting marijuana, and defendants involvement in what appeared to be a hand-to-hand sale in an area of high narcotics traffic. The expert was presented a hypothetical based on the facts preceding defendants detention and testified that he was [a] hundred percent certain the marijuana was possessed for purposes of sale.

An expert on the medical use of marijuana testified for the defense that marijuana is used primarily for the control of pain in the treatment of a number of medical conditions, including diabetes. The expert testified that California law permits possession of up to eight ounces of marijuana if youre a legitimate patient. He explained that one of the ways to obtain marijuana was from a club or dispensary, where quantities ranging from a gram to a pound are sold in Ziploc bags. Such clubs sell marijuana of varying quality, as lower quality marijuana can be used for cooking or making tea.

The expert confirmed that defendant was an insulin-dependent diabetic with long-term complications and that he had received a formal recommendation for the use of marijuana. According to the expert, the marijuana found in one of the baggies in defendants backpack was lower quality marijuana and was consistent with use for oral ingestion. The other baggie of marijuana found in defendants backpack had rotted from moisture, suggesting it, too, had probably been lower quality marijuana. The marijuana contained in the 49 baggies was higher quality marijuana and was most likely meant to be smoked. The expert testified that the amount of marijuana defendant had in his possession could have been a patients one-month supply. It was his opinion that the packaging of the marijuana was not necessarily indicative of possession for sale, as it is not uncommon for patients to separate their marijuana into smaller portions to keep track of the doses.

DISCUSSION

Defendant argues that the trial court erred by limiting its instructions on the Compassionate Use Act to the lesser included offense of possession of more than an ounce of marijuana. We disagree.

The Compassionate Use Act provides, in part: Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patients primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. ( 11362.5, subd. (d).) The statute clarifies that [n]othing in this section shall be construed . . . to condone the diversion of marijuana for nonmedical purposes. ( 11362.5, subd. (b)(2).)

Defendant maintains the Medical Marijuana Program Act ( 11362.7 et seq.) added possession of marijuana for sale to the list of offenses for which the Compassionate Use Act provides an affirmative defense. ( 11362.765, subd. (a).) Section 11362.765 expressly prohibits the cultivation or distribution of marijuana for profit, but provides that specified individuals are not subject to prosecution for possession for sale of marijuana. ( 11362.765, subd. (a).) An individual is exempt from prosecution under this section only if he or she is: (1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use[;] [] (2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes . . . only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver[;] [or] [] (3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person. ( 11362.765, subd. (b)(1)-(3).)

The first exemption applies only to a qualified patient whose possession of marijuana is for personal use, not to a person who possesses marijuana for purposes of sale. As for the second and third exemptions, defendant presented no evidence that he was a primary caregiver or that he provide[d] assistance to a qualified patient or a . . . primary caregiver. ( 11362.765, subd. (b)(2) & (3).) Consequently, none of the exemptions to prosecution for possession of marijuana for sale applied to defendants circumstances. (See People v. Wright (2006) 40 Cal.4th 81, 99 [jury determination that marijuana was possessed for sale rather than personal use rendered failure to give instruction on Compassionate Use Act harmless with regard to charge of transportation of marijuana].)

Blacks Law Dictionary defines affirmative defense (see defense) as [a] defendants assertion of facts and arguments that, if true, will defeat the plaintiffs or prosecutions claim, even if all the allegations in the complaint are true. (Blacks Law Dict. (8th ed. 2004) p. 451, col. 1.) Possession of marijuana for sale requires an intent to sell. Thus, to constitute an affirmative defense, defendants status as a medical marijuana user must be sufficient to defeat this element of the offense. It is not.

The fact that defendant was authorized to possess marijuana for medical purposes as a qualified patient did not entitle him to possess it for sale. Although defendant was entitled to argue to the jury the relevance of his status as a medical marijuana user with regard to his intent, the trial court properly declined to instruct the jury on the Compassionate Use Act in regard to this offense.

We note an error in the abstract of judgment. The trial court imposed a two-year midterm sentence, doubled pursuant to Penal Code section 667, subdivision (e)(1), for a total sentence of four years. (RT 307) Thus, the box in item No. 4 of the abstract should be checked, indicating the strike sentence.

DISPOSITION

The judgment is affirmed. The trial court shall prepare an amended abstract of judgment with item No. 4 checked to reflect defendants sentence was doubled pursuant to Penal Code section 667, subdivision (e)(1) and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

BUTZ , J.

We concur:

RAYE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] Undesignated statutory references are to the Health and Safety Code.