P. v. Gunn

Filed 12/31/08 P. v. Gunn CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. Affirmed.

Chester E. Bennett for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Michael R. Johnsen, and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.

Following a court trial, defendant was found guilty of cultivating marijuana (Health & Saf. Code, 11358^[1]), and possession of marijuana. ( 11357.) In reaching its decision, the trial court rejected the theory that defendant was authorized to possess more than six mature plants under the Compassionate Use Act (CUA), and the Medical Marijuana Program (MMP). ( 11362.5, 11362.7, et seq.)

On appeal, defendant contends that (1) the trial court erred in finding he cultivated more than six mature plants ( 11362.77); (2) the trial court erred in permitting the prosecution to cross-examine defendants treating physician as to the diagnostic methods used; (3) the trial court erred in ignoring evidence that defendants doctor recommended more than the baseline allowance of marijuana plants; (4) the court erred in ignoring defendants statutory immunity from criminal liability; and (5) the trial courts reasoning in finding defendant guilty was based on its erroneous conclusion that defendant was required to prove a medical need for the amount of marijuana possessed. We affirm.

BACKGROUND

On March 2, 2006, members of the Riverside County Sheriffs Department Southwest Corridor Task executed a search warrant of defendants premises, including a Weekend Warrior fifth-wheel trailer, a wooden shed, and a travel trailer. Sheriffs deputies impounded between 206.8 grams and 207.5 grams of marijuana from various locations in the Weekend Warrior,^[2]and an immature four-foot marijuana plant standing in the bathroom shower under a grow light. In a closet across from the bathroom, the deputies found a loaded rifle, a glass bong for smoking marijuana, cigarette rolling papers, and packaging materials. They also located a medical marijuana authorization letter dated July 23, 2004.

Inside the travel trailer, deputies found a 55-gallon drum of liquid fertilizer, which fed fertilizer into the nearby shed through plastic tubing. Inside the shed, deputies found a hydroponic cultivation system, complete with lights, a grow fan, a humidifier, various liquid fertilizers, and seven marijuana plants, each of which was about four-feet tall, budding, and within a week or two of harvesting. In a safe directly outside the shed were a number of unregistered firearms.

Defendant was charged with unlawful cultivation of marijuana ( 11358) and possession of marijuana for sale. ( 11359.) He was tried by the court without a jury. During trial, the court heard testimony of two sheriffs deputies assigned to the Southwest Corridor Task Force to investigate narcotics offenses. Both officers testified that the maturity of the marijuana plants was determined based on the presence or absence of buds. The plants found in the shed were mature, while the plant found in the shower of the Weekend Warrior bathroom was immature. Because of the quantity of marijuana and plants, the presence of firearms, the packaging materials and the scale, the narcotics expert was of the opinion the marijuana was possessed for sale.

Defendant had a doctors recommendation for medical marijuana for the treatment of insomnia and chronic leg pain. Defendant had fractured his leg in three places following a skydiving accident, for which a metal plate and screws were surgically implanted. Defendants doctor gave defendant a letter recommending medical marijuana for the pain and insomnia. Between 2004 and 2006, the doctor recommended medical marijuana consistent with the statutory guidelines of Health and Safety Code section 11362.5. Defendant testified he discussed increasing his marijuana use in 2005 or 2006, but the doctors recommendation approving the use of larger amounts of marijuana was dated February 16, 2007, after the search of the premises and after the criminal proceedings were instituted.

On November 7, 2007, the trial court found defendant guilty of unlawful cultivation of marijuana ( 11358), and unauthorized possession of more than an ounce of marijuana ( 11357), a lesser offense included within the greater offense of possession for sale of marijuana. ( 11359.) Defendant appealed from the convictions.

DISCUSSION

Defendant raises a number of issues challenging the validity of his convictions for marijuana possession and cultivation under the CUA and MMP, which we address separately.

1.                  There Was Substantial Evidence to Support the Courts Finding that Defendant Cultivated More Than Six Mature Marijuana Plants.

Defendant argues the court erroneously found defendant was cultivating more than six mature marijuana plants. Defendant refers to the testimony of various sheriffs deputies, who gave differing opinions as to the degree of maturity of the plant in arguing there was no competent testimony or evidence offered at trial to indicate any of the seven plants seized from defendants residence were mature. Alternatively, he argues the court erroneously concluded defendant was obligated to show a medical need for the quantity of marijuana possessed in order to invoke the provisions of the CUA. We disagree.

a. Standard of Review

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier court reasonably deduce from the evidence. (People v. Wilson (2008) 44 Cal.4th 758, 806.) It is the exclusive function of the trier of fact to pass on the credibility of witnesses, resolve any conflicts, and determine the weight to be accorded the evidence; a reviewing court may not reappraise the credibility of witnesses or reweigh the evidence. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.) Where two conflicting inferences may be drawn from the evidence it is our duty to adopt the one supporting the challenged order or judgment. (People v. Hunt (1985) 174 Cal.App.3d 95, 104.)

Because this case was tried without a jury, and because defendant places emphasis on perceived errors in the trial courts reasoning, we must observe some additional guidelines. In a criminal case tried by a judge alone an appellate tribunal will affirm or reverse the judgment of conviction upon errors of law alone. A correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasons. (People v. Smithey (1999) 20 Cal.4th 936, 972.)

b. Analysis

The CUA provides a partial defense against the charges of possession of marijuana ( 11357), and cultivation of marijuana ( 11358), but not to charges of selling marijuana or possessing marijuana for sale. (People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1389.) For a defendant to avoid conviction and punishment for possession or cultivation of marijuana, he or she must be able to show that he or she is a qualified patient or caregiver. (People v. Mower (2002) 28 Cal.4th 457, 474-475.) Thus, a defendant must show that the quantity of marijuana possessed, and the form and manner in which it is possessed, is reasonably related to the defendants current medical needs. (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549.)

The CUA does not limit the amount of marijuana one may possess or cultivate in order to come within the purview of the statute, so long as the drug is possessed or cultivated for the personal medical purposes of the patient. ( 11362.5, subd. (d); see also, People v. Windus (2008) 165 Cal.App.4th 634, 640.) However, the MMP ( 11362.77) does set a limit on the amount of marijuana a qualified patient may possess.^[3] Pursuant to the MMP, a qualified patient or primary caregiver may possess no more than six mature or 12 immature marijuana plants, unless he or she has a doctors recommendation that this quantity does not meet the patients medical needs. (People v. Windus, supra, at p. 640.)

Even with a physicians recommendation or approval, a patient may not possess an unlimited quantity of marijuana; he or she may possess no more than is medically necessary. (People v. Trippet, supra, 56 Cal.App.4th at p. 1549.) What precisely are the patients current medical needs must, of course, remain a factual question to be determined by the trier of fact. (People v. Windus, supra, 165 Cal.App.4th at p. 643,quoting People v. Trippet, supra, 56 Cal.App.4th 1532, 1549.) However, it is not enough to obtain a physicians approval after the defendants arrest. (People v. Rigo (1999) 69 Cal.App.4th 409, 410, 411-412.)

In the present case, there was testimony from Deputy Piccini that the seven plants seized from the shed had buds, so they were mature, while the plant found in the bathroom shower of the Weekend Warrior was immature. Her testimony about the determination of maturity of the plants was echoed by sheriffs investigator Bender, who used the presence of buds as a primary indicator of maturity of the marijuana plant. Investigator Bender also testified that the number of plants was at least three times more than that required to provide daily marijuana for a heavy user, suggesting it was being cultivated for sale. There was substantial evidence to support the finding that defendant possessed more than six mature marijuana plants, which makes the possession criminal in the absence of a doctors recommendation that six mature plants would not meet defendants medical needs.

The court, as trier of fact, was permitted to reject defendants testimony that the quantity of marijuana was excused by his doctors recommendation approving, as medically necessary, use of larger quantities of marijuana. (See People v. Combs (2004) 34 Cal.4th 821, 851.) Defendants testimony that the recommendation was made in 2006, prior to his arrest, was contradicted by the evidence of the letter signed by Dr. Eidleman, indicating that defendants medical needs required more than the amounts provided by statute, showing it was recommended in 2007. There was substantial evidence to support the trial courts conclusion that defendant possessed more than six mature plants and that the number of plants exceeding the MMP allowance was not reasonably related to defendants medical needs at the time.

2.                  The Provisions of the Compassionate Use Act Do Not Provide Complete Immunity from Prosecution; They Represent an Affirmative Defense, For Which Defendant Has the Burden of Producing Evidence to Raise a Reasonable Doubt.

Defendant claims the trial courts ruling erroneously indicated that defendant was required to show a medical need for the quantity of marijuana possessed. He also contends that the CUA constitutes a statutory immunity from criminal liability. Defendant is in error.

The CUA was enacted upon passage of Proposition 215 in November, 1996. The statute does not grant any sort of complete immunity from arrest or prosecution. (People v. Mower, supra, 28 Cal.4th at pp. 468, 469.) Instead, it provides a limited immunity which can be raised as a defense at trial and permits a motion to set aside an indictment or information before trial. (Id.at p. 470.) As an affirmative defense, the defendant has the burden of proof as to the facts underlying the defense provided by statute, although his burden is merely to raise a reasonable doubt as to his guilt. (Id. at pp. 478-479.)

Thus, defendant was required to establish the elements of the qualified patient defense. (See, People v. Windus, supra, 165 Cal.App.4th at p. 640.)

3.                  The Court Did Not Abuse Its Discretion in Permitting Cross-Examination of Defendants Treating Physician on His Diagnostic Methods.

Defendant argues the trial court improperly permitted the prosecutor to cross-examine the defendants treating physician as to his diagnostic methods. Citing People v. Spark (2004) 121 Cal.App.4th 259, 268, for the proposition that a physicians determination . . . is not to be second guessed. However, the partially quoted language actually refers to the legislative intent that the question of whether medical use of marijuana is appropriate for a patients illness should be determined by a physician, rather than by jurors who might not deem the patients condition to be sufficiently serious. (Ibid.) Nothing in the decision holds that doctors who prescribe medical marijuana for their patients are immune from cross-examination.

A doctor is subject to the broad cross-examination permitted of any witness. (Evid. Code, 773, subd. (a); see People v. Nye (1969) 71 Cal.2d 356, 374.) As an expert, he may be subject to even broader cross-examination as to his qualifications and the basis for his opinion. (Evid. Code, 721, subd. (a); People v. Gray (2005) 37 Cal.4th 168, 216.) Because the trial court has broad discretion to permit broad cross-examination to attack the credibility of a witness (People v. Guthreau (1980) 102 Cal.App.3d 436, 445), its rulings will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 530; Garcia v. Hoffman (1963) 212 Cal.App.2d 530, 535.)

On appeal, defendant cites no authorityother than the partial statement from People v. Spark, supra, 121 Cal.App.4th at page 268to support his position that the court was required to limit the scope of cross-examination of the doctor whose diagnosis was relied upon by defendant to prove he was a qualified patient. Because the CUA and MMP defenses are limited to qualified patients, the doctors testimony relating to the basis for the diagnosis and recommended treatment is a proper subject for cross-examination.^[4]

Our research has revealed no expression of legislative intent that doctors recommending medical marijuana for patients should be immune from cross-examination, nor have we found any authorities holding that possession of a doctors recommendation entitles the defendant to unlimited possession of an otherwise controlled substance. Such a conclusion is inconsistent with the Trippet courts statement that the CUA and MMP were not intended to serve as an open sesame regarding possession, transportation and sale of marijuana (People v. Trippet, supra, 56 Cal.App.4th at p. 1546), and is contrary to the intent expressed in the ballot information relating to Proposition 215. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996), rebuttal to argument against Prop. 215, p. 61.)

We find no abuse of discretion on this record.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

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^[1] Except where otherwise indicated, all further statutory references are to the Health and Safety Code.

^[2] The deputy testified 207.5 grams was seized, but the sum of the amounts located in different places within the trailer amounted to 206.8 grams.

^[3] The California Supreme Court is currently reviewing the issue of whether enactment of the MMP unconstitutionally amended the CUA by quantifying the amount of marijuana a person falling under the CUA may possess. (People v. Kelly (2008) 163 Cal.App.4th 124, review granted August 13, 2008, S164830; People v. Phomphakdy (2008) 165 Cal.App.4th 857, review granted October 28, 2008, S166565.)

^[4] On cross-examination, it was established that Dr. Eidleman was the treating physician for the appellant in People v. Wright (2006) 40 Cal.4th 81, where the court determined that the MMP applied retroactively, entitling the defendant to compassionate use instructions. He was also the treating physician in People v. Windus, supra, 165 Cal.App.4th 634, where the prosecutor elicited information about Dr. Eidlemans 2002-2004 medical license suspension. (Id. at p. 638.)