P. v. Hudson
Filed 1/13/14 P. v. Hudson 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NOT TO BE PUBLISHED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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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.
CORY
HUDSON,
Defendant and
Appellant.
C070127
(Super. Ct. No.
CRF090005666)
After
defendant Cory Hudson drove down a road, weaving across the double-yellow line,
an officer pulled him over. The officer
smelled a strong odor of marijuana and found a variety of drugs and drug
paraphernalia in the car. An information
charged defendant with transportation of marijuana, possession of marijuana for
sale, and possession of concentrated cannabis.
(Health & Saf. Code, §§ 11360, subd. (a), 11359, 11357, subd. (a).)
guilty of possession of marijuana for sale but not guilty on the other two
counts. The trial court sentenced
defendant to three years’ probation and 180 days in jail, with 60 days stayed
upon successful completion of probation, and ordered defendant to register as a
narcotics offender. Defendant appeals,
arguing the trial court failed to properly instruct the jury on his medical
marijuana defense and challenging the testimony of the prosecution’s
for sale. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Late one
night in November 2009 Michael Simpson, a California
Highway Patrol (CHP) officer, pulled over a car driven by defendant. A search of the car unearthed drugs and drug
accoutrements. An
defendant with transportation of marijuana (count 1), possession of marijuana
for sale (count 2), and possession of concentrated cannabis (count 3). A jury trial followed.
Traffic Stop and Search
As
Officer Simpson drove northbound on a Yolo
County road he observed a car repeatedly weaving across the double-yellow
line into the southbound lane. When
Officer Simpson pulled over the car, he smelled a strong odor of marijuana and
asked the driver, defendant, if there was anything illegal in the car. Defendant replied, “No.†Officer Simpson asked defendant’s passenger,
defendant’s son, if there was anything in the car he needed to know about. Defendant’s son Ross said there were two
marijuana cigarettes in the car.
Officer
Simpson’s search unearthed a burnt joint under Ross’s seat and another to the
side of the seat. In the car’s center console,
the officer found a blue plastic container with bottles containing marijuana, a
marijuana joint, scissors, and a film canister with 9.65 grams of a brown
substance later identified as concentrated cannabis. One bottle bore defendant’s name and listed
its contents as hydrocodone, generic Vicodin.
Another bottle was labeled: “For
medicinal use only as defined in California Health and Safety
Code Section 11362.5(b)(I)(A) and 11362.7 not for resale. Type, green, crack weight one eight.â€
Woodland
Police Officer Olson responded to the scene with a drug dog in tow and ran the
dog through the car. After the dog was
finished Officer Simpson resumed his search and found a day planner in the back
seat. In the planner were $220 and a
large plastic bag containing 17 smaller baggies. A black zippered duffle bag sat on the back
seat. Officer Olson told Officer Simpson
his dog had “hit†on the bag. A search
of the bag revealed a small portable scale, garden scissors, and two other
pairs of scissors.
In
the trunk, Officer Simpson found a green container of prescription bottles that
held marijuana, a couple of plastic jars, and a meal grinder used to grind
marijuana and separate the stem from the bud.
Defendant’s son Ross claimed the items belonged to him. The trunk also contained an ice cooler with a
camouflage backpack inside. The backpack
contained twenty-five $20 bills wrapped in a label stating “five hundredâ€and
two baggies of marijuana weighing approximately 245.5 grams and 125.4
grams each.
Statements to Officers
Following
defendant’s arrest, officers advised him of his Miranda rights.
and told Officer Simpson he grows marijuana. He also claimed ownership of the backpack and
the marijuana in it, and of the items in the blue container in the center
console. Defendant stated the container
held his personal medicinal marijuana.
He was taking the marijuana to sell to marijuana cooperatives throughout
Sacramento. The money in the backpack
came from one such transaction. He had
not been able to sell all the marijuana.
Inside the film canister was hash he made at his collective,
concentrating the THC into a more potent form.
Ross
also waived his Miranda rights. He told Officer Simpson that defendant picked
him up after defendant went to the “medicinal shop.†Ross admitted ownership of the green container
in the trunk and its contents. The
marijuana joints in the car were also his.
The bag in the other container was not his. Although the money did not belong to him, he
knew it was there and knew there was marijuana in the bag. Ross said he was allowed to have eight ounces
of marijuana or less on him, and eight ounces of the marijuana was his. He did not know how much was in the bigger
bag of marijuana. Ross did not go to the
medicinal shop and did not buy or pack the marijuana.
Preliminary Hearing Testimony
Defendant’s
preliminary hearing testimony was read to the jury. In June 2008 defendant obtained a one-year
doctor’s recommendation for therapeutic cannabis, which was renewed the
following year. Defendant has an outdoor
marijuana garden where each plant uses at least three cubic-yard bags of
fertilizer that cost up to $20 per bag.
It costs approximately $100 to produce one ounce of marijuana, and each
plant yields about 12 ounces of usable drug.
Defendant,
his mother, and Ross all have recommendations for therapeutic cannabis and are
allowed up to six plants each. The
garden had fewer than 18 plants. Of the
bag of marijuana found in the trunk, one-third belonged to him and the rest
belonged to his mother and Ross.
The
marijuana was for their personal use; defendant did not mention selling the
marijuana. Instead, he took the
marijuana to a cooperative collective (co-op) to donate it. He donated four to five ounces; he did not
weigh the remainder. Defendant has a
contract with the co-op. The co-op paid
him $500 for the donation, compensation for his time and labor. Defendant received the money a few hours
before the traffic stop.
Expert Testimony
CHP
Officer David Diaz, a 15-year veteran of the force, served on the narcotic
enforcement team for the two and a half years prior to trial. He testified as an expert in the possession,
sale, cultivation, use, and effects of marijuana.
Officer
Diaz received training in basic narcotic investigation and attended a two-week
narcotics school on the use, packaging, and sale of marijuana. He also attended a 24-hour indoor and outdoor
cultivation class taught by law enforcement.
Officer
Diaz testified he has interviewed people with medical marijuana recommendations
who grow their own marijuana and others who grow without a recommendation. In addition, he expressed familiarity with
how marijuana is grown and packaged, and the related paraphernalia.
Officer
Diaz has spoken with individuals who have medical marijuana recommendations and
sell, donate, or provide marijuana to dispensaries, cooperatives, or
collectives. They described the methods by
which they provide the marijuana as well as the amounts. According to Officer Diaz, the aim of a
collective is to share marijuana, labor, and costs equally.
While
working undercover, Officer Diaz visited two dispensaries on three
occasions. On one visit he walked in and
an employee asked if he was a vendor or a patient. He said he was a patient. After purchasing marijuana, he told the
employee that he had friends who did not have recommendations and needed to
sell some marijuana. The employee
responded that Officer Diaz’s friends could give Diaz the marijuana and the
dispensary would buy it from him as long as he had a recommendation. The employee told Officer Diaz to bring “a
pound. Just go ahead and bring whatever you
have.â€
The
dispensaries Officer Diaz contacted sold him marijuana in an “eight ball,†or
3.5 grams, but he believed they also sold larger quantities. Some prescriptions provide different amounts,
but often there is not a prescribed amount.
In
Officer Diaz’s opinion, if someone had two large bags of marijuana, one with
125 grams and the other a little less than 245 grams, or together about 12
ounces, that would be a large amount and would lead him to strongly suspect it
might be for sale. The existence of a
medical marijuana recommendation would be but one factor to consider, since an
individual with a recommendation can legally possess only eight ounces. Officer Diaz’s conversations with medical
marijuana users mitigated against concluding such a large amount was for
medicinal use, because they carry only what they need, a few grams. A medical marijuana user would need only two
to three grams of concentrated cannabis.
Officer
Diaz also opined that carrying 12 ounces of marijuana in a duffle bag in a
cooler in the car trunk was consistent with concealment. The cooler would mask the odor. The presence of a scale would increase Officer
Diaz’s suspicion that the marijuana was possessed for the purpose of sale. Similarly, if an individual had $500 in cash,
that would strengthen his opinion on possession for sale. The presence of an additional six $20 bills
and a $100 bill would reinforce
his opinion, as would the presence of 17 baggies.
Ziploc
baggies are used to package marijuana for sale and would not be consistent with
someone selling marijuana to a dispensary because dispensaries buy in
bulk. Dispensaries buy in ounces, not
grams. The scale defendant possessed was
too small to be able to weigh more than two or three ounces. A dispensary would have its own scale that could
measure larger amounts.
Officer
Diaz has investigated outdoor marijuana gardens, large and small. Recently he checked out eight houses to ensure
compliance with legal guidelines: eight
ounces, six mature plants, 12 immature plants.
Residential gardens usually yield only one to two pounds per plant under
average conditions. However, Officer Diaz
has seen plants yielding about three pounds each, making defendant’s estimates
of his plants’ productivity low.
In
addition, Officer Diaz found defendant’s testimony concerning the necessity for
three cubic yards of fertilizer for one plant unreasonable; his interviews with
employees at hydroponic stores that sell growing equipment revealed an average
plant requires only one liter of fertilizer.
A cubic yard contains 764 liters.
Based on his conversations with hydroponic store employees and
individuals at dispensaries, Officer Diaz testified it costs about $23 for chemicals,
fertilizer, and soil to grow each plant and $10 in seed, for a total of $33,
not counting water and labor. On the
high side, adding in the cost of water, an average plant would cost $50 to
produce; if each plant yielded 16 ounces of usable marijuana, the cost per
ounce would be $3.12.
Under
Officer Diaz’s analysis, if defendant’s plants yielded an average of 12 ounces
each and each plant required $50 in expenditures, then it cost defendant $4.17
per ounce. Therefore, defendant’s
statement that each ounce cost him $100 was not reasonable. According to Officer Diaz, if it cost
defendant $5 to grow an ounce and he sold it for $100 an ounce, then
defendant’s sale would yield $95 profit per ounce; given a yield of 12 ounces
per plant, defendant’s profit would be $1,140 per plant.
According
to Officer Diaz, the size of an average joint for medicinal use is about 0.2 gram
to 0.5 gram depending on the individual.
Using 0.5 gram as a base, 350 grams of marijuana would produce 700 “joints,â€
or marijuana cigarettes. In Officer Diaz’s
analysis, the average joint produces a high lasting between three and four
hours. Using three hours as a base, 700 joints
would last 2,100 hours, or 87-1/2 days.
During
cross-examination Officer Diaz testified marijuana can be eaten in baked goods,
such as brownies. He had no knowledge of
baking marijuana and could not estimate the amount needed to produce brownies
or other edibles. He was not familiar
with defendant’s medical needs. When Officer
Diaz estimated the expense of raising each plant, he did not factor in time,
labor, or extra equipment. His review of
the evidence did not reveal any pay/owe sheets or a cell phone, both indicia of
marijuana sales.
Defense Case
Ross’s
Testimony
Defendant’s
son Ross, a passenger in the car when Officer Simpson pulled them over,
testified. He had a medical marijuana
recommendation and bought marijuana from dispensaries “every month or so.†From the dispensaries, Ross usually bought an
ounce for $300 or $400, which was put in medicine bottles with a label. Ross also purchased brownies or cookies from
the dispensaries.
At
the dispensary, Ross took classes about growing marijuana and did volunteer
work. After volunteering and taking
classes, Ross and defendant could grow their own medicinal marijuana within prescribed
limits. Any extra marijuana grown could
be donated to the dispensary. Ross
sometimes made exchanges with dispensaries.
Defendant
was not selling marijuana; the dispensary was compensating him for the time and
effort it took to produce it. Ross
testified that when a grower receives money in exchange for marijuana, it is
similar to a sale. Defendant shared with
Ross the money he received from the dispensary.
Ross,
defendant, and Ross’s grandmother all had recommendations and together grew
marijuana. Although they were allowed 18
plants total, they grew only nine. The plants
yielded between 12 ounces and a pound of marijuana each and required watering
for a couple of hours every other day.
In
addition to the marijuana he grew, Ross would sometimes buy about an ounce for
$300 to $400. The ounce would last a
couple of weeks to a month, depending upon whether it was smoked or eaten. Brownies require four to five ounces of
marijuana, which would be doubled if you were baking for two patients. In Ross’s experience, 12 ounces would be
a year’s worth of smoking; edibles would require more.
The
day they were pulled over, Ross and defendant were on their way to see Ross’s grandmother. When Officer Simpson stopped them, defendant
and Ross gave him their recommendations.
Officer Simpson smelled marijuana and asked if they had any; they told
him where the marijuana was.
The
items in the console belonged to defendant; the items in the green bin in the
trunk belonged to Ross. Defendant put
the marijuana into the duffle bag and the bag into the cooler. Ross saw the cooler when he put his bag into
the trunk. Defendant told Ross as they
drove that the marijuana was in the trunk.
Ross testified the marijuana was from their grow, and half the marijuana
in the cooler belonged to him.
When
Ross was interviewed he told the officer that defendant loaded the duffle bag
in the cooler and he did not know how much was in it. Ross said eight ounces were his and the $500
was compensation defendant received from the dispensaries.
Defendant’s
Testimony
Defendant,
53 when he was arrested, suffered a bad fall in his early 40’s, breaking many
bones and requiring a body cast. As a
result of at least 22 years of construction work, defendant also suffers from
arthritis. Since 2008 he has had four
operations and a pain relief prescription for Vicodin. Defendant’s mother’s addiction to painkillers
made him wary of narcotics. As an
alternative, defendant got a recommendation for medical marijuana.
Defendant
joined a marijuana dispensing collective and closed marijuana cooperative,
Delta Health and Wellness (DHW).
Defendant signed a membership agreement that included the following: “No diversion, sales, and/or distribution of
your medication is allowed. DHW has a
zero tolerance in this area. A violation
will result in membership termination.
Your excess that you grow must go to a legal Collective and never be
diverted to non-patients.â€
Defendant
also visited another dispensary, and he attended nine classes on the effects
of, growing, medicinal use of, and recipes for marijuana. Defendant and his mother tend to use the
marijuana more in edible form, which has a greater impact on bodily pain.
Defendant’s
initial attempt to grow medical marijuana indoors yielded less than spectacular
results at a cost of $900 in fans, lights, and other equipment. He moved the surviving plants outside and
spent another $700 on soil, fertilizer, and expensive glass. Collective members came to defendant’s home
and helped with the garden.
In
November of 2009 defendant, Ross, and defendant’s mother had nine plants that they
shared. Defendant put 50 to 60 hours
into growing the marijuana.
The
day Officer Simpson stopped him, defendant had gone to DHW because they asked
him to bring two kinds of marijuana.
Defendant packed the marijuana into two bags and used a scale to ensure
that each bag was less than eight ounces, as the dispensary recommended. He put the bags of marijuana into a backpack. At the collective, members took the backpack containing
the marijuana to a room in the back while defendant waited in the patient
area. The members brought the backpack
back to defendant with the zipper shut. The
DHW members told him they could not use all the marijuana. Inside the backpack, they placed $500 wrapped
in paper. Defendant put the bag in the
trunk and drove home.
Defendant
testified the items in his car’s center console, including the container with
the blue lid, belonged to him. The hash
would be used to make edibles. The $220
in the console was money he earned doing odd jobs. The $500 in the cooler was money defendant
received from the dispensary. The small
plastic baggies belonged to his ex-wife, who ran a craft business. After defendant saw similar baggies at the
dispensary, he tried to give them to the dispensary, which refused them. Defendant did not use the baggies to sell
marijuana.
During
the stop, Officer Simpson did not seize a tub of brownies that defendant made
and brought to the dispensary to see if they would be acceptable. Nor did Officer Simpson seize the screens and
other equipment used to wash marijuana to produce THC for use in the edible
marijuana.
Defendant
testified that during the traffic stop he felt pressured by Officer Simpson to
use the word “sold†instead of donated, and defendant “felt like it would get
him off of me if I just said it.â€
However, defendant testified he did not sell marijuana to people;
instead, he used the word “donate†to describe the transactions. Defendant believed the collective set the
price of marijuana; he did not ask for a specific price.
Under
the terms of his contract with the collective, defendant brought his medical
marijuana to the collective. Defendant
believed this was legal. He gave the collective
four ounces. Defendant had been
contributing a great deal of marijuana to the collective and believed he was
paid $500 for his participation in the collective. When the collective paid him, the collective
said it was compensating for what it took.
Defendant also donated time, not just marijuana, although it was not
until the collective took his marijuana that he received the money. On cross-examination, defendant acknowledged
donations are not usually compensated.
Defendant believed it was normal to be compensated for donating
marijuana under his agreement with the collective.
Verdict and Sentencing
The jury
found defendant guilty of possession of marijuana for sale, but not guilty of
transportation of marijuana or possession of concentrated cannabis. The trial court granted defendant formal probation
for three years with various conditions, including that he serve 180 days in
jail, with 60 days stayed upon successful completion of probation. The court also ordered defendant to register
as a narcotics offender. Defendant filed
a timely notice of appeal.
DISCUSSION
Instructional
Error
Defendant
contends the trial court failed to properly instruct on the medical marijuana
defense provided by the Medical Marijuana Program Act in conjunction with the possession
of marijuana for sale count. In addition
to the instructions the court gave on defendant’s medical marijuana defense,
defendant argues the jury should have been instructed, as to the possession of
marijuana for sale count, that (1) a qualified patient who possesses marijuana
for personal use is not subject to criminal liability under section 11359, (2)
a patient may possess up to eight ounces of dried marijuana, (3) a patient is
entitled to receive reasonable compensation for medical marijuana provided to a
legally operated collective, and (4) the prosecution bears the burden of
proving beyond a reasonable doubt that defendant was not authorized to possess
the marijuana for medical purposes.
Compassionate Use Act
In 1996
the voters passed Proposition 215, the Compassionate Use Act of 1996, which
states 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 patient’s
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
Legislature passed Senate Bill No. 420 in 2003, which established the Medical
Marijuana Program Act, effective January 1, 2004. (§§ 11362.7-11362.83; Stats. 2003, ch. 875, §
2.) This act extends protection against
criminal liability to patients transporting marijuana for medical use and to
caregivers who transport, process, administer, deliver, or give away marijuana
for medical purposes. The Medical Marijuana
Program Act recognizes a qualified right to collective cultivation of medical
marijuana. (§ 11362.775.)
In
addition, pursuant to section 11362.81, subdivision (d), on August 25, 2008, the
California Attorney General issued “Guidelines for the Security and Non-Diversion
of Marijuana Grown for Medical Use†(Guidelines)
press/pdfs/n1601_medicalmarijuanaguidelines.pdf>
(as of Jan. 10,
2014).
The purpose of the Guidelines is to ensure that marijuana grown for
medicinal purposes remains secure and does not find its way into illicit
markets, to help police perform their duties effectively and in accordance with
the law, and to help patients understand how they may cultivate, transport,
possess, and use medical marijuana under California
law. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1009.)
The
Guidelines establish that although California law
does not expressly recognize dispensaries, a collective or cooperative growing
operation that dispenses medicinal marijuana through a storefront may be lawful
under section 11362.775. (Guidelines,
within the meaning of section 11362.775 should adhere to the formal
requirements, refrain from distributing marijuana outside the group, and
operate on a nonprofit basis. (Guidelines,
supra, at pp. 9-11.) Under the Guidelines, “dispensaries that
merely require patients to complete a form summarily designating the business
owner as their primary caregiver — and then offering marijuana in exchange for
cash ‘donations’ — are likely unlawful.â€
(Id. at p. 11.) Although the Guidelines are not binding, we
give them considerable weight. (
Defendant’s Requested Instructions
Prior to
trial, the defense requested that the jury be instructed regarding sections 11362.765,
11362.77, and 11362.775, and the possession of marijuana for sale count. The defense proposed the following three
instructions:
First
requested instruction: “Compassionate
Use Act prevents qualified patients from being subject, on that sole basis, to
criminal liability under Health and Safety Code Sections 11359 or 11360. However, the [C]ompassionate Use Act does not
authorize any individual or group to cultivate or distribute marijuana for
profit.â€
Second
requested instruction: “A qualified
patient may possess no more than eight ounces of dried marijuana per qualified
patient. In addition, a qualified
patient or primary caregiver may also maintain no more than six mature or 12
immature plants per qualified patient. A
qualified patient may possess amounts of marijuana consistent with this
article.â€
Third
requested instruction: “Qualified
patients who associate within the State of California in
order collectively or cooperatively to cultivate marijuana for medical
purposes, shall not solely on the basis of that fact be subject to state
criminal sanctions under Section 11357, 11359, or 11360.â€
The
prosecution objected to only the second requested instruction, based on
in which the Supreme Court struck down the marijuana limits provided for in the
instruction and held that a qualified patient can possess only an amount
reasonably necessary to meet his or her current medical needs. According to the prosecution, the second
requested instruction conflicted with the limits in Kelly. However, the prosecution
conceded that defendant relied on the limits in the instruction because the
events in question occurred prior to Kelly. The court postponed any decision on the
instruction, and further instruction discussions were off the record.
Instructions Given
The
court instructed the jury with CALCRIM No. 251: “The crimes charged in this case requires [
operation, of act and wrongful intent.
“For
you to find a person guilty of the crimes in this case, that person must not
only intentionally commit the prohibited act, but must do so with a specific
intent and/or mental state. The act and
the specific intent and/or mental state required are explained in the
instruction for that crime. [¶] . . .
[¶]
“The
specific mental state required for the crime of Possession for Sale of
Marijuana, which is charged in Count 2, is knowledge of the presence of the
marijuana and knowledge of its nature and character as a controlled
substance. The specific intent required
for this crime is the specific intent to sell marijuana.â€
The
court also instructed the jury on possession for sale of marijuana with CALCRIM
No. 2352: “The defendant is charged in
Count 2 with possessing for sale marijuana, a controlled substance.
“To
prove that the defendant is guilty of this crime, the People must prove that:
“1.
The defendant possessed a controlled
substance;
“2. The defendant knew of its presence;
“3.
The defendant knew of the substance’s
nature or character as a controlled substance;
“4.
When the defendant possessed the
controlled substance, he intended to sell it;
“5. The controlled substance was marijuana;
“and
“6. The controlled substance was in a usable
amount.
“
instruction means exchanging the marijuana for money, services, or anything of
value.
“A
usable amount is a quantity that is
enough to be used by someone as a controlled substance. Useless traces are not usable amounts. On the other hand, a usable amount does not
have to be enough, in either amount or strength, to affect the user.
“
growing or not, including the seeds and resin extracted from any part of the
plant.
“Two
or more people may possess something at the same time.
“A
person does not have to actually hold or touch something to possess it. It is enough if the person has control over
it, either personally or through another person.†In addition, the court instructed on the
lesser included offense of simple possession of marijuana.
The
court instructed the jury that the Compassionate Use Act defense was available
for the transportation of marijuana, simple possession of marijuana, and
possession of concentrated cannabis charges.
(CALCRIM Nos. 2361, 2375, 2377.) The
jury was not instructed on the act as a defense for the possession of marijuana
for sale charge.
The
court instructed the jury as to the Medical Marijuana Program Act and
Compassionate Use Act defenses with regard to the lesser included offense of
simple possession of marijuana: “Possession
of marijuana is lawful if authorized by either the Compassionate Use Act or the
Medical Marijuana Program.
“The
Compassionate Use Act allows a person to possess marijuana for personal medical
purposes when a physician has recommended such use. The amount of marijuana possessed must be
reasonably related to the patient’s current medical needs.
“The
Medical Marijuana Program allows a qualified patient to possess no more than
eight ounces of dried marijuana and to maintain no more than six mature or 12
immature marijuana plants.
“The
People have the burden of proving beyond a reasonable doubt that the defendant
was not authorized to possess marijuana for medical purposes. If the People have not met this burden, you
must find the defendant not guilty of this crime.†(CALCRIM No. 2375.)
The
court further instructed the jury that “[t]he Compassionate Use Act does not
authorize any individual or group to cultivate or distribute marijuana for
profit.†Finally, the court instructed: “The Compassionate Use Act allows qualified
patients to associate within the State of California in
order collectively or cooperatively to cultivate marijuana for medical
purposes. You may not find the defendant
guilty of the crimes charged in counts 1, 2, or 3, or the lesser offense of the
crime charged in count 2, based solely on the fact that he associated with
other qualified patients in order collectively or cooperatively to cultivate
marijuana for medical purposes.â€
with the sentence defendant requested: “A qualified patient may possess amounts of
marijuana consistent with this article.â€
References in Closing Arguments
During
closing argument, the prosecution argued defendant intended to sell the
marijuana and defendant possessed the marijuana in a way inconsistent with
possessing it for medical needs.
According to the prosecution, “the defenses of the defendant being a
qualified patient simply don’t apply in this case.
“.
. . The idea that he donated the marijuana to the dispensary, and then they
compensated him for his donation . . . [t]hat’s exchanging marijuana for money,
which is the definition of a sale according to the jury instruction.â€
The
prosecution also addressed possible defenses: “You can’t have a medical marijuana card and
get pounds of marijuana and start selling it to anybody on the street and use
that card as a shield . . . . So you
need to look at the defenses as they exist and see if they apply to
[defendant’s] actions. . . .
“The
first one . . . is the possession for sale of marijuana . . . because when you
look at the instruction for Count 2, there is no defense there for being a
qualified patient for having a medical marijuana card. It’s not a defense. Just because you have a medical marijuana
card, doesn’t mean you get to sell marijuana.
So when you’re looking at Count 2, the fact that the defendant had a
medical marijuana card, doesn’t even come into play.†Defense counsel objected and the court
instructed the jurors, “Remember what I told you is if anything that what the
attorney says conflicts with what I tell you, you follow the law.â€
The
prosecution continued: “You look at the
instructions. The defense is listed for
transportation of the Compassionate Use Act [sic]. The defense is listed
for the lesser included defense of possession of more than an ounce of
marijuana. The defense is included for
the possession of concentrated cannabis.
It’s included right there in the instruction. It’s not included in possession for sale of
marijuana. It doesn’t apply.
“. . .
Even if you were allowed to, the law is crystal clear you cannot sell marijuana
to anybody for any reason if you’re making a profit . . . the number[s] here
show clearly the defendant was making a profit.â€
In
addition, the prosecution discussed collectives: “The Compassionate Use Act allows qualified
patients to associate within the State of California in
order to collectively or cooperatively cultivate marijuana for medical purposes.
. . . [I]f you’re working together, we
can’t charge you with . . . possession for sale . . . because there are three,
four, five people working together to cultivate marijuana. [¶] . . . [¶]
“The
People outside of [defendant], Ross Hudson, and [defendant’s] stepmother --
nobody else was involved in the cultivation of that marijuana. Yeah, he took classes at the dispensary, but
that’s not being involved in the cultivation of the marijuana. So he goes outside of his group, that small
group of three people, to give the marijuana to other people. Since the people that he was giving the
marijuana to had nothing to do with its cultivation, they’re not allowed to
have that marijuana. So all of these
actions fall outside the protections that he’s given as a medical marijuana
patient . . . .â€
Defense
counsel argued: “[T]he whole crux of
this case is about is [sic] the
collective, and [defendant’s] participation in the collective. And it is a defense. It is an absolute defense.
“It
says: You may not find the defendant
guilty of the crimes charged in Counts 1, 2, 3, or the lesser crime
charged in two based solely on the fact that he associated with other qualified
patients and in order to collectively or cooperatively cultivate marijuana for
medical -- medicinal purposes. That’s what
a cooperative is. People grow their marijuana, and then they collectively take
it together. When you have yours, you
bring it in, and then at other times you don’t, take it out.â€
Defense
counsel also argued: “The law says you
can be part of it. You can’t profit from
it. And that’s the deal. That’s the crux of the case. And that’s for you to decide whether or not
he was profiting from it. He wasn’t.
“Officer
Diaz talked about it costs five dollars an ounce for that, but he didn’t
include any time and labor for that. And
that’s something you also have to consider.
“You
also have to consider if you’re part of a collective, and part of it you’re
putting in and then eventually you’re [taking] out. And he was part of that collective. . .
. He signed to be part of it. And part of it is . . . that his
excess that he grows must go to [the] collective and never be diverted to
non-patients.
“As
Officer Diaz said an average plant yields between one and two pounds . . . but
you can’t have more than eight ounces.
“What
do you do with the excess? They’re in a
catch twenty-two position. . . . [T]he
law says that you can be part of a collective, which is what [defendant]
was. You can’t profit from that. And I would submit to you he didn’t . . . .†Defense counsel also stated defendant
exchanged the marijuana as part of a collective and did not profit from the
exchange.
Jury Questions
The
second day of jury deliberations, the jury asked: “For compassionate use - simple possession
2375 code 11357(c) states a qualified patient can poss. for personal medical
use no more than 8 oz of marijuanna [sic]. Is this also true for patient to [possess]
while transporting pot? Does the
possession of 8 oz apply accross [sic]
all compassionate use laws?â€
The
court replied: “I refer you to the
instructions. In particular, see
instruction 2361, which is specific to the crime charged in Count 1,
transporting marijuana. The last
paragraph of that instruction discusses the Compassionate Use Act as it applies
to this crime.†The jury deliberated for
several more hours before reaching a verdict.
Discussion
The
trial court must instruct, even in the absence of a request, on the general
principles of law relevant to the issues raised by the evidence. These general principles refer to those
principles closely and openly connected with the facts before the court and
necessary to the jury’s understanding of the case. (People
v. Sedeno (1974) 10 Cal.3d 703, 715.)
Before giving an instruction, the court must find legally sufficient
evidence in the record to support the finding or inference that the instruction
permits. (People v. Hannon (1977) 19 Cal.3d 588, 597.) “ ‘[A] trial court need give a requested
instruction concerning a defense only if
there is substantial evidence to support the defense.’ [Citation.]â€
(In re Christian S. (1994) 7
Cal.4th 768, 783, first brackets added by this court.)
We
review de novo the court’s ruling on instructions, independently reviewing the
record when the trial court refuses an instruction requested by the defense
based on a lack of substantial evidence.
(People v. Manriquez (2005) 37
Cal.4th 547, 581-584.) We uphold the
trial court’s ruling unless the record contains substantial evidence to support
the requested instruction. (People v. Rodriguez
(1997) 53 Cal.App.4th 1250, 1269-1270.) We
assume jurors are intelligent and capable of understanding and correlating all
instructions given by the court. (
Defendant
mounts a multifaceted challenge to the court’s instructions on count 2,
possession of marijuana for sale. In
essence, defendant argues the court’s instructions allowed the jury to convict
him based on his exchange of money for marijuana, even if he did not profit
from the exchange. According to
defendant, the court should have instructed the jury regarding his medical
marijuana defense under the Medical Marijuana Program Act and on the
prosecution’s burden of proof.
Defendant
begins by arguing the court erred in failing to instruct that a qualified
patient who possesses marijuana for his own personal use is not subject, on
that sole basis, to criminal liability under section 11359 (possession of
marijuana for sale). However, the court
instructed as to count 2’s lesser included offense of simple possession that under
the Compassionate Use Act a person can possess marijuana in an amount
“reasonably related to the patient’s current medical needs†when a physician
has recommended such use. In addition,
the court instructed that under the Compassionate Use Act qualified patients
can collectively or cooperatively cultivate marijuana for medical purposes, and
“You may not find the defendant guilty of the crimes charged in counts 1, 2, or
3, or the lesser offense of the crime charged in count 2, based solely on the
fact that he associated with other qualified patients in order collectively or
cooperatively to cultivate marijuana for medical purposes.†These instructions adequately informed the
jury that it could not convict defendant simply because he possessed marijuana
for personal use.
Second,
defendant faults the trial court for failing to inform the jury that a
qualified patient may possess up to eight ounces of dried marijuana. The court instructed the jury in conjunction
with the lesser included offense of simple possession in count 2: “Possession of marijuana is lawful if
authorized by . . . the Medical Marijuana Program. [¶] . . . [¶]
“The
Medical Marijuana Program allows a qualified patient to possess no more than
eight ounces of dried marijuana and to maintain no more than six mature or 12 immature
marijuana plants.â€
Defendant
argues this “does not necessarily mean that the jury recognized that the
instruction applied to count 2 as well.â€
We disagree. The instruction
informed the jury that a qualified user could lawfully possess eight ounces of
marijuana; the jury would naturally conclude this level of legal possession
applied to a charge of possession for sale as well as simple possession. Nor are we convinced by defendant’s argument
that to “ ‘possess no more than eight ounces’ †and to possess “ ‘up to
eight ounces of marijuana’ †are not the same.
Defendant argues the former is a “restriction†on the amount of
marijuana and the latter is an “authorization†on the amount of marijuana. Such semantic niceties aside, there is no
reason to believe the jury failed to properly understand, and properly apply,
the amount authorized by the Medical Marijuana Program Act.
Third,
defendant contends the court improperly failed to instruct that a qualified
patient is entitled to receive reasonable compensation for the marijuana
provided to a legally operated medical marijuana cooperative. Defendant argues the court had a duty to so
instruct based on language in the Guidelines citing section 11362.765,
subdivision (c), stating that a “dispensing collective or cooperative may
credit its members for marijuana they provide to the collective, which it may
then allocate to other members.â€
(Guidelines, supra, at p. 10.)
We
disagree. The jury understood, pursuant
to the court’s instructions, that qualified patients can associate in order to
collectively cultivate marijuana for medicinal purposes and that defendant
could not be found guilty based solely on that fact. In addition, the court informed the jury that
“[t]he Compassionate Use Act does not authorize any individual or group to
cultivate or distribute marijuana for profit.â€
Therefore, the jury knew that defendant could associate with other
patients in the collective to provide marijuana but could not cultivate or
distribute marijuana for profit; unless defendant received compensation above
and beyond his costs, defendant’s actions in providing marijuana were not
illegal. An instruction on reasonable
compensation was not necessary.
Finally,
defendant faults the trial court for failing to instruct that the prosecution
bore the burden of proving beyond a reasonable doubt that defendant was not
authorized to possess the marijuana for medical purposes. However, the court instructed the jury in
connection with the lesser included offense to count 2, simple possession, that
“[t]he People have the burden of proving
beyond a reasonable doubt that the defendant was not authorized to possess
marijuana for medical purposes.†There
is no reason to suspect, as defendant argues, that the jury might have failed
to recognize that the burden applied to count 2 as well.
Expert Witness Testimony
Defendant
challenges Officer Diaz’s qualifications to offer an opinion as to whether the
marijuana was possessed for sale, rendering his testimony insufficient to
support defendant’s conviction for possession of marijuana for sale. According to defendant, Officer Diaz did not
have experience being a vendor with a legal marijuana cooperative and never
provided medical marijuana to a collective as a member. Defendant contends his sufficiency of the
evidence claim was not forfeited by defense counsel’s failure to object.
Forfeiture
The
People concede that a claim of evidence insufficient to support the verdict is
not subject to forfeiture. However, the
People argue defendant is not challenging the sufficiency of the evidence but
is instead challenging the admissibility of Officer Diaz’s testimony. Recently in People v. Dowl (2013) 57 Cal.4th 1079, the Supreme Court held that
a defendant’s failure to object at trial to a proferred expert’s qualifications
forfeits appellate review of whether the evidence is sufficient to establish
that the witness was qualified to testify as an expert that the defendant
possessed the marijuana for purposes of sale.
(Id. at pp. 1088-1089.) The court also concluded: “Nevertheless, despite his failure to object,
defendant may argue on appeal that the evidence put before the jury at
trial—including the officer’s opinion testiony—was insufficient to establish he
possessed the marijuana for purposes of sale.â€
(Id. at p. 1089.) Accordingly, we consider defendant’s
challenge to the sufficiency of the evidence.
Sufficiency of the Evidence
On
appeal, we review the entire record to determine whether it contains evidence
that is reasonable, credible, and of solid value on the basis of which any
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We review the evidence in the light most
favorable to the judgment and presume in support of the judgment every fact the
trier could reasonably deduce and infer from the evidence. (Ibid.)
Defendant
argues Officer Diaz had no experience providing medical marijuana to a
collective and, in exchange, receiving compensation. Nor did Officer Diaz have any experience in
how collectives compensate members when they provide marijuana to a
collective. According to defendant,
Officer Diaz misstated the law when he testified that a person with a medical
marijuana recommendation cannot take excess marijuana to a dispensary. Officer Diaz also admitted he lacked
expertise in cooking marijuana to produce edibles.
In
support, defendant relies on People v.
Hunt (1971) 4 Cal.3d 231 (Hunt) and
People v. Chakos (2007) 158 Cal.App.4th
357 (Chakos). In Hunt,
the defendant was convicted of unlawful possession for sale of a restricted dangerous
drug but not guilty of unlawful possession of two other restricted dangerous
drugs, some of which were found in his conceded possession. (Hunt,
supra, 4 Cal.3d at pp. 233-234.) The Supreme Court found the evidence
insufficient to support the judgment.
The officer who testified that the drugs were held for sale had
extensive training, education, and experience relating to the possession of and
trafficking in dangerous drugs. (
and heroin, it is settled that an officer with experience in the narcotics field
may give his opinion that the narcotics are held for purposes of sale based
upon matters such as quantity, packaging, and the normal use of an
individual. On the basis of such
testimony convictions of possession for purposes of sale have been upheld. [Citations.]
“A
different situation is presented where an officer testifies that in his opinion
a drug, which can and has been lawfully purchased by prescription, is being
held unlawfully for purposes of sale. In
the heroin and marijuana situations, the officer experienced in the narcotics
field is experienced with the habits of both those who possess for their own
use and those who possess for sale because both groups are engaged in unlawful
conduct. As to drugs, which may be
purchased by prescription, the officer may have experience with regard to
unlawful sales but there is no reason to believe that he will have any
substantial experience with the numerous citizens who lawfully purchase the
drugs for their own use as medicine for illness.†(Id.
at pp. 237-238.) Therefore, in the
absence of evidence not to be expected in connection with the lawful use of
drugs, an officer’s opinion that possession of lawfully prescribed drugs is for
purposes of sale “is worthy of little or no weight and should not constitute
substantial evidence sufficient to sustain the conviction.†(Id.
at p. 238.)
In
Chakos, the defendant, who possessed
six ounces of marijuana, was convicted of possession for sale. The conviction was based on the testimony of
the arresting deputy sheriff. The deputy
testified as both a percipient witness and an expert. (Chakos,
supra, 158 Cal.App.4th at pp. 359-360,
361.) A search of the defendant’s car
and home yielded the marijuana, $781 in cash, a doctor’s medical slip for
lawful marijuana use, 99 empty baggies, a scale, and a closed circuit camera
system. (Id. at pp. 360-361.)
According to the deputy, the totality of the circumstances led him to
conclude the marijuana was possessed for sale.
These circumstances included the precise quantity of marijuana found in
the car, which was not packaged for personal use but was more consistent with
marijuana for sale. This, coupled with
the scale, packaging material, and surveillance camera system, led to the
deputy’s conclusion. (
The
appellate court found the deputy’s testimony insufficient to support the defendant’s
conviction. The deputy had general and
narcotics training in drug identification and in the growing, selling, and
packaging of marijuana, and he had assisted in more than 100 narcotics
investigations. He had spoken to people
who bought and sold marijuana about the amounts they used and had seized indoor
grows. (Chakos, supra, 158
Cal.App.4th at p. 361.) However, the
deputy had never arrested anyone with a medical marijuana recommendation. (Id.
at p. 362.) The court, relying on
in the medical use of marijuana. (
The
Chakos court noted that
when no possession of marijuana was lawful.
(Chakos, supra, 158 Cal.App.4th at p. 365.)
The court found: “[T]hat kind of
expertise—expertise in distinguishing lawful patterns of possession from
unlawful patterns of holding for sale—is what is conspicuously missing in the
case before us. As with the officer in
cases where defendants by definition ‘are
engaged in unlawful conduct.’ [Citation.] The only evidence on the point was that he
had ‘contact with investigations’ concerning such individuals. Mere and undefined ‘contact’ with undefined
‘investigations’ is manifestly not substantial
evidence that an officer is in any way familiar with the patterns of
individuals who, under state law, may lawfully purchase marijuana pursuant to a
physician’s certificate under the Compassionate Use Act, nor does it show any
expertise in the ability to distinguish lawful from unlawful possession.†(
the court found the expert “unqualified to render an expert opinion in this case†and concluded the evidence was
insufficient to support the defendant’s conviction of possession of marijuana
for sale. (Id. at p. 369.)
In
so finding, the court found the officer’s inconsistent testimony about the
various amounts found in the defendant’s car and apartment reflected a lack of
expertise concerning legal marijuana use.
In addition, the court noted: “One might posit, then, that individuals who
may lawfully possess marijuana under state law for medicinal purposes will have
patterns of purchase and holding that will reflect the practical difficulties
in obtaining the drug. Those practical
difficulties could also explain the gram scale—anyone with the lawful right to
possess marijuana will need to take precautions, not to ensure that he or she
does not get ‘ripped off’ by a dealer, but that he or she does not possess
by the act. Practical difficulties of
obtaining the drug also explain why a patient entitled to possess it under
state law might want to keep an extra supply on hand within the legal amount, since supplies would not be
reliable.†(Chakos, supra, 158
Cal.App.4th at p. 368.)
Here,
unlike the scenario in Chakos,
Officer Diaz provided numerous, unambiguous details to support his opinion that
defendant possessed the marijuana for sale.
Defendant possessed 12 ounces of marijuana. The marijuana was placed in the car’s trunk,
in a duffle bag inside an ice cooler.
This placement, Officer Diaz testified, suggested an effort to conceal
the marijuana, with the cooler used to mask the smell. Officer Diaz also noted the presence of twenty-five
$20 bills, another six $20 bills, a $100 bill, and 17 small clear plastic
baggies. This cache indicated to Officer
Diaz that defendant possessed the marijuana for sale, not to be traded at the
collective.
Although
defendant asserts that Officer Diaz lacked experience with marijuana
collectives, the officer testified he had spoken with medicinal marijuana users
and was familiar with the growing process.
In addition, Officer Diaz testified he interviewed medicinal marijuana
users who sell, donate, or provide marijuana to cooperatives and discussed how
they furnish marijuana.
Officer
Diaz testified he visited two marijuana dispensaries on three occasions while undercover. During his visits he spoke with employees
about how much marijuana they purchase for the dispensary from individuals with
medical marijuana recommendations and the ways in which they buy it. He also spoke with dispensary employees about
how they sell medical marijuana to recommendation holders. They sold him marijuana in an “eight ball,†or
3.5 grams, but they also sold larger quantities. Although some medical prescriptions specify
amounts of marijuana, usually there is no prescribed amount. Officer Diaz testified the aim of a marijuana
collective is to share marijuana, labor, and costs equally.
Defendant
also asserts that Officer Diaz lacked familiarity with the amounts needed to
bake marijuana into edibles. Officer
Diaz admitted he was not an expert in the culinary use of marijuana; such an
admission was for the jury to consider in assessing the weight to give the officer’s
testimony regarding possession of marijuana for sale.
In
cases involving possession of marijuana, an experienced officer may give an
opinion as to whether the marijuana is held for purposes of sale, based on
factors such as quantity, packaging, and normal use by an individual. However, as to drugs that may be purchased by
prescription, an officer’s opinion that possession of lawfully prescribed drugs
is for purposes of sale is worth little or no weight in the absence of evidence
of some circumstances not to be expected in connection with a patient lawfully
using the drug medicinally. (
such circumstances and provided sufficient evidence to support the jury’s
finding that defendant possessed the marijuana for sale.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
MURRAY ,
J.
name="_ftn1" title="">[1] All further statutory
references are to the Health and Safety Code unless otherwise designated.
name="_ftn2" title="">[2] Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (
