P. v. Jaques
Filed 6/24/13 P. v. Jaques CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. JAMES DALE JACQUES, Jr., Defendant and Appellant. | E053356 (Super.Ct.No. SWF028160) OPINION |
APPEAL
from the Superior Court
of
County. Thomas Kelly,
Judge. (Retired judge from Santa Cruz
Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Steven
S. Lubliner, under appointment by the Court of Appeal for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, James Jacques, Jr., of transporting more than 28.5
grams of marijuana (Health & Saf. Code, § 1360, subd. (a)
11359). He was granted probation and
appeals, claiming that the defense of being part of a medical marijuana
collective is unconstitutionally vague, evidence was improperly admitted, the
evidence was insufficient and the jury was misinstructed. We reject his contentions and affirm.
On
May 1, 2009, a police
officer stopped the car defendant was driving for a vehicle violation. Defendant said he had no identification. Defendant said his nephew had rented the
car. Defendant confirmed that he was on
probation out of another county for a drug offense. Defendant said he was a drug registrant at an
address in Temecula, but he was not living at that address at the time. He had fourteen $5.00 bills, one $10.00 bill
and a cell phone on him. He said there
was marijuana in the glove box, but it belonged to his passenger, and the
passenger confirmed this.
name="_ftnref2" title="">[2] Defendant said he had a medical marijuana
card that allowed him to use and possess marijuana, but he did not have the
card with him and he never showed one to the officer. He never provided proof that he had such a card. In the trunk of the car, which emitted the
odor of marijuana, the officer found, inter alia, a clothing bag, which
defendant said belonged to his nephew.
Defendant said there were a couple of pounds of marijuana in the bag. The officer saw what appeared to him to be
marijuana in five plastic baggies, each weighing approximately one pound, in
the bag.
marijuana recommendation and was a primary caregiver and dispensed medical
marijuana, which was allowed by the authorization the nephew had. He said the marijuana in the vehicle was for
dispensing to medical clients and his nephew dispensed marijuana. There was one $100 bill and eighty $20 bills
in the zipped side pouch of the bag.
Defendant said the money was not his—that it must belong to his nephew. In another bag in the trunk was a scale.
marijuana card allowed him to be a primary caregiver,
concern†and it was “legal for him to possess.â€
However, defendant never said the marijuana was his, but that it
belonged to his nephew. He also never
mentioned a collective.
After
defendant was arrested, he directed the officer and the officer’s partner to a
home in Lake Elsinore
where he claimed he was currently living.
Defendant did not have the key to the home, but claimed he went in and
out through a rear sliding glass door.
They entered through the unlocked rear sliding glass door and defendant
took the officers to an upstairs bedroom which appeared to be a child’s room. No clothing or possessions inside the room
linked defendant to it.
Defendant’s
cell phone contained several text messages, one of which appeared to be from a
person who was asking defendant about the purchase of marijuana. The sender identified herself as
“‘ . . . Sarah, Nate dog and Sarah’s friend.†She asked, “Just wondering about some
mary? You get texts?’†Another text, which had been sent by a man
who eventually testified for defendant at his trial, said, “‘Hey, it’s
Matt. Can I get a quarter instead of the
40[?]’†A text from a third number said,
in part, “‘I’m getting mad complaints about the last three drop offs.’†A text from another person who eventually testified
for the defense at this trial said, “‘My buddy with his card is coming
over. Can I get an extra two
O’s . . . ?[’]â€
name="_ftnref6" title="">[6] Two other texts from the same person said,
“‘Could you deliver a O tonight. I’d be
willing to meet you close to you. My
friend is flaking again but tomorrow is a big day.’†Another text from the same person asked,
“‘How much for QP, BTW?’â€
name="_ftnref7" title="">[7] Yet another said, “‘I’m going to grab a
dr[i]nk from inside while you weigh that out.’â€
A text from another number asked, “‘Is it cool to give JP the cash I owe
you and just grab two more[?]’†Another
text from that same number said, “‘Are you busy? Your friends are getting bored. Can I get two this time for 550?’†The officer opined that all of these texts
referred to the sale of marijuana.
Defendant’s
nephew testified that defendant stayed at the nephew’s Lake Elsinore home about
two nights a week. The nephew said he
was a medical marijuana patient and had a recommendation from a doctor. He also said he had a caregiver card. However, he denied being in any group with
defendant regarding growing marijuana and he denied growing marijuana with
defendant. He admitted that defendant
had given him marijuana from time to time.
He said that defendant apologized to him for saying that the nephew
owned the marijuana that was found in the car.
The nephew denied any knowledge of the marijuana in the car and he
denied that the marijuana or the money that was there was his. He said he had rented the car for defendant’s
use because defendant did not have a credit card.
Defendant’s
passenger testified that defendant had a marijuana delivery service and
defendant delivered marijuana to the passenger.
The marijuana in the glove box was the passenger’s, which he was
authorized by a doctor to have. He
denied knowledge of or ownership of the marijuana that was found in the
trunk. He testified that defendant told
him that it was defendant’s. He said he
would buy one-quarter of an ounce of marijuana from defendant each month for
$140,
and defendant had him fill out paperwork before defendant gave him
marijuana. Also, before he got marijuana
from defendant, the passenger and defendant had a discussion about the
obligations of medical marijuana patients—that the marijuana could not be used
for anything other than medical purposes.
However, there was no discussion that the recipient of the marijuana
could not share it with someone who was not a medical marijuana patient,
although the passenger had been aware of this fact since 2006. At one point, defendant had given him some
marijuana as a sample and did not charge him for it. He thought defendant had given him paperwork,
but he was unable to locate it. However,
he claimed to have signed something he had not read. He thought he had designated defendant as his
primary caregiver, but he was not certain.
However, the extent of their relationship was that when the passenger
needed marijuana, he would call defendant and defendant would bring him
marijuana, which the passenger would pay for.
To his knowledge, he was not part of a group that grew marijuana that
included defendant. He did not know
where defendant obtained the marijuana he provided to him. Defendant never told him to what use the
money the passenger gave defendant for the marijuana defendant supplied to him
was put.
A
female who had obtained marijuana from defendant in exchange for money
testified for the prosecution that while at her doctor’s office, getting a
marijuana recommendation, she was given defendant’s business card. She called defendant and he told her that he
would have to call her doctor’s office, then call her back. Ten minutes later, he called her back and
asked her how much marijuana she wanted.
In response to her question, he said he had two kinds and she asked him
to bring both so she could try each. He
said each cost $50 for an eighth of an ounce.
At defendant’s direction, they met at a pancake house. Defendant had marijuana edibles he showed
her. He told her he was a primary
caregiver, he took care of a lot of people,
and he was starting a co-op. Defendant asked for and was given a copy of
her recommendation. However, she signed
no paperwork and saw none. He showed her
a card, which bore a star, and he had previously told her that a star on your
card meant that you were a primary caregiver.
However, she did not designate him as her primary caregiver. He did not call the money she gave him for
the marijuana a donation. She denied
being a member of a group. Defendant
told her that he supplied marijuana to dispensaries. When he handed her the marijuana, it was in
two sandwich baggies, which she pulled up to see the contents. He slapped her hand and said, [“I]t ain’t
that legal.[â€]
An
expert testified for the prosecution that illegal co-ops or dispensaries sell
marijuana at a profit for about $20 or more a gram, which was about the price
for marijuana on the street. Legal
marijuana can be grown for the patient’s own use or in a collective or
cooperative. He said that people who
operate legal collectives like to talk about their organization and the members
know each other. A collective is usually
comprised of a person who owns land or a garage and a certain number of
members. All members of the collective
contribute labor and/or supplies or the money to purchase them to grow the
marijuana. Together they harvest and
process the marijuana, then divide it up amongst themselves. To legally be a member of a collective, one
has to have a medical marijuana recommendation.
Collectives are not allowed to operate for profit, and the Attorney General’s
Guidelines so provided. The only valid
price for marijuana offered by a legitimate collective is the actual cost to
produce it and get in the hands of the patient.
It costs between $300 and $800 to grow one pound of marijuana indoors
and less to grow it outdoors, and that would include the cost of labor, which
should not be a factor in a collective, since the members supply the
labor. In his opinion, charging $250 per
ounce is more than the cost of operating and overhead. Marijuana is the most profitable drug to
sell. Based on the testimony of three
witnesses who testified for the defense, whose testimony will be described
doing was not a legal collective. This
was because defendant was selling the marijuana at a profit, he did not have an
on-going relationship with these people and met them in parking lots and sold
quantities of one-eighth of an ounce at a time and there was no indication that
these people were in any group collective setting or were working together and
they did not know each other. He also
opined that one person could not constitute a collective and it would make no
sense for a collective to offer quantity discounts. Based on what the defense witnesses said they
gave defendant in exchange for the marijuana he supplied them, the marijuana
found in the trunk had a value of between $25,920 and $53,760. He opined that defendant’s distribution of
marijuana was for profit in part because what he was charging in the text
messages exceeded the cost of growing marijuana. He explained that the text messages found on
defendant’s phone also suggested that he was not part of a legal collective in
that the prices quoted in them were too high.
Additionally, people operating in a collective have a ongoing
relationship with each other and contribute towards and divide up the yield of
the crop and the text senders were not doing this—they were calling defendant
and telling him they needed a certain amount of marijuana. The fact that the
paid a different amount from the other for marijuana supplied by defendant also
suggested that the asserted collective was not legal. He allowed that members of a collective may
legally contribute money to the collective, but that money had to be used to
buy things necessary for the growing or distribution of the marijuana to
members of the collective. According to
the Attorney General’s Guidelines, compensation for overhead costs had to be
reasonable. Only a primary caregiver can
be compensated for his or her efforts and labor in growing the marijuana. Collective members can agree that each member
will receive a different amount of marijuana than the other members
receive. Based on his knowledge and
experience, people who wanted to join a collective first had to have their
status verified by the collective, they had to agree not to distribute
marijuana to non-members and to agree to use it only for medical purposes and
their records had to be accessible to the collective. Based on a hypothetical containing the facts
of this case, he opined that defendant possessed the marijuana for sale. He based this on the facts that there was
over six pounds of marijuana in the trunk and scales “to meet whatever the need
is when you get the calls[,]†the presence of the $20 bills, which are the most
common denominator when dealing in street level narcotics, the text messages
asking about getting ounces and how much would be charged for a quarter pound
and defendant’s prior conviction for possessing cocaine for sale. Other aspects of his testimony are described
elsewhere in this opinion.
Evidence
concerning defendant’s prior conviction of a drug offense is described
elsewhere in this opinion.
A
female medical marijuana patient testified for the defense that in 2008, she
joined a group of similar patients, of which defendant was also a member. However, she admitted that she knew none of
the other members of the group and did not know how many people were in the
group. She and defendant verbally agreed
that he would supply her with marijuana.
She showed defendant her medical recommendation. Before she joined the group, she and
defendant went over the rules, which were that the marijuana she received was
for her use only, she could not share it with others, she could not sell it and
she was to treat it as medicine. She
termed the money she gave defendant for the marijuana he gave her a donation
and she believed she was contributing to the group by paying this money,
although she admitted telling representatives of both the prosecutor’s office
and the defense team that she bought
marijuana from defendant and she did not mention the word “donation.†She asserted that defendant’s organization
was a non-profit, but she did not explain how she knew this.
she obtained about one ounce per week.
She would call defendant, he would bring her marijuana and she would
give him money. She did not know where
defendant grew the marijuana he supplied to her, but she “knew†he was growing
it himself, although she did not know how, and the money she gave him was to
cover the cost of this. However,
defendant never discussed with her crop yields or costs. She asserted that the marijuana found in the
trunk was to go to her and other members of the group, but, again, she did not
explain how she knew this. She asserted
that defendant was her primary caregiver, however, she also said that he only
provided her with medical marijuana and did nothing else for her. She added that she knew that a legal
caregiver is a person who takes the patient to the doctor, and defendant did
not do that for her, so defendant was “not her caregiver in the legal†sense.
A
male medical marijuana user testified for the defense that he contacted
defendant when a friend told him that the friend was getting his marijuana from
defendant. He asserted that he joined a
group of medical marijuana patients, but he admitted that he did not know any
of the other members of the group. He
also admitted that he had no idea what role anyone in the group played other
than defendant supplying marijuana. On
one occasion, he saw defendant doing paperwork, but he otherwise saw no logging
being done by defendant. He said that
his first meeting with defendant occurred when he and defendant met a place
away from the witness’s home and he got into defendant’s car “because [the
witness] lived in a gated community.†He
showed defendant his recommendation and gave him a copy of it. He asserted that this information was
verified but he did not explain how he
knew this. Defendant described the
“rules,†which were that marijuana could not be given to anyone who did not
have a card or to anyone outside the group (but anyone could join the group)
and the marijuana was to be treated as medicine. He asserted that he gave defendant
“donations†for the marijuana, which he considered to be his contribution to
the group. Defendant did not tell him
that defendant, himself, grew the marijuana and the witness did not know
defendant’s source for it. He allowed
that defendant may have gotten it from someone else and not grown it
himself. He used two ounces or less a
month and gave defendant $10 per gram, or about $275 per ounce. He said that in response to his text message
about how much a quarter pound would cost, defendant offered a discount for
larger quantities, but this witness never took advantage of it. The witness did nothing to help cultivate the
marijuana. He designated defendant as
his primary caretaker, but defendant never provided him with anything other
than marijuana. This witness admitted
that after he joined the group, he sent defendant the text message that said,
“My buddy with his card is coming over.
Can I get an extra two O[unces]s?â€
He admitted that at the time, his buddy was not a member of the
group. He also admitted sending the text
message in which he asked defendant to deliver an ounce that night, that he
would be willing to meet defendant close to where defendant was and that his
friend was “flaking again†but that tomorrow was a big day, which meant that
tomorrow was pay day. This witness was
never told how much marijuana the group had or about its finances. He said that none of the marijuana found in
the trunk was his, but he “supposed†that, as a member of the group, he was
entitled to “a little bit†of it. He
said that defendant had given him a gram of marijuana and an edible as a gift,
but other than that, he always gave a “donation†for every ounce of marijuana
he obtained from defendant.
A
second male medical marijuana patient also testified for the defense that he
discovered defendant on a web site. He
asserted that he joined a group of like patients, of which defendant was also a
member, but he never met any of the other members. Defendant did not tell him whether defendant,
himself, grew the marijuana. He admitted
that he did not know if defendant grew the marijuana himself—in fact, he
believed that defendant got it from medically licensed growers and
caregivers. This witness knew nothing
about the yields, prices or finances of the group. At their first meeting, this witness showed
defendant his medical marijuana card from Riverside County, his doctor’s
recommendation and he gave defendant a copy of the card. Defendant showed his defendant’s medical
marijuana card from Riverside County. He
asserted that defendant “t[oo]k some steps to verify†that he was a medical
marijuana patient, but he did not explain how he knew this. Defendant explained the rules—that a member
cannot redistribute marijuana to others or share with non-medical marijuana
patients or drive under the influence.
The marijuana was to be treated like medicine. This witness offered a certain amount of
money as a donation “to the group†and defendant told him the amount of
marijuana he would give him in exchange for this. He admitted that after joining the group, he
sent the text in which he asked for a “quarter†instead of a “40.†He explained that he meant that he usually
donated $40, but on this day he could donate $100 to get a quarter of an
ounce. He got two and one-half grams for
a $40 donation, but if he was really in pain, defendant would give him more. He also received a discount for
quantities. He never designated
defendant as his primary caretaker and he had no interaction with defendant
other than defendant giving him marijuana in exchange for money. In a particularly poignant moment during his
testimony, he was asked how the facts that he called defendant, defendant
brought him marijuana, he gave defendant cash and defendant gave him marijuana
were “different than a purchase and a sale[.]â€
He responded, “I don’t know.â€
and Discussion
1. Constitutionality
of the Collective Defense
“In 1996, voters passed Proposition 215, the
Compassionate Use Act of 1996 [citation].
One purpose of the CUA was to ‘ensure that seriously ill Californians
have the right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended by a physician who
has determined that the person’s health would benefit from the use of marijuana
in the treatment’ of illnesses for which marijuana provides relief. [Citations.]
A second purpose was to ensure that patients and their primary
caregivers who obtain and use medical marijuana are not subject to criminal
prosecution or sanction.
[Citation.] The CUA therefore
provided that 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 a doctor’s
recommendation. [Citation.] The CUA thus provided a limited immunity from
prosecution, including a defense at trial.
[Citation.] [¶] In response to the CUA’s encouragement ‘to
implement a plan to provide for the safe and affordable distribution of
marijuana to all patients’ in need of it [citation], our Legislature enacted
the M[edical] M[arijuana] P[rogram] A[ct] [citation]. Through the MMPA, the Legislature sought to
‘(1) [c]larify the scope of the application of the act and facilitate the
prompt identification of qualified patients and their designated primary caregivers
in order to avoid unnecessary arrest and prosecution of these individuals and
provide needed guidance to law enforcement officers. [¶] (2) Promote uniform
and consistent application of the act among the counties within the state. [¶]
(3) Enhance the access of patients and caregivers to medical marijuana through
collective, cooperative cultivation projects.’
[Citation.] To these ends,
section 11362.775 of the MMPA provides, ‘Qualified patients, persons with valid
identification cards, and the designated primary caregivers of qualified
patients and persons with identification cards, 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 Sections 11357, 11358, 11359,
11360, 11366, 11366.5, or 11570.’
[Citation.]†(
1029, 1035 (Colvin).)
The
Colvin court went on to say, “The
Legislature also enacted section 11362.765, which provides:
‘(a) Subject to the requirements of this article, the individuals specified in
subdivision (b) shall not be subject, on that sole basis, to criminal liability
under Sections 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall
authorize the individual to smoke or otherwise consume marijuana unless
otherwise authorized by this article, nor
shall anything in this section authorize any individual or
for profit. [¶] ‘(b) Subdivision (a) shall apply to all of
the following: [¶] ‘(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. [¶]
‘(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.
[¶] ‘(c) A primary caregiver who receives compensation for actual expenses,
including reasonable compensation incurred for services provided to an eligible
qualified patient or person with an identification card to enable that person
to use marijuana under this article, or
for payment for out-of-pocket expenses incurred in providing those services, or
both, shall not, on the sole basis of that fact, be subject to prosecution
or punishment under Section 11359 or 11360.â€
(Colvin, supra, 203 Cal.App.4th at p, 1035, fn. 7, italics added.)
“This
[last] section thus allows a primary caregiver to receive compensation for
actual expenses and reasonable compensation for services rendered to an
eligible qualified patient . . . .†(People
v. Urziceanu (2005) 132 Cal.App.4th 747, 784, 785.)
Section
11362.7, subdivision (d) provides, in pertinent part, “‘Primary caregiver’
means the individual, designated by a qualified patient or by a person with an
identification card, who has consistently
assumed responsibility for the housing, health, or safety of that patient or
person . . . .â€
(§ 11362.7, subd. (d), italics added.)
Subdivision (f) provides, “‘Qualified patient means a person who is
entitled to the protections of Section 11362.5, but who does not have an
identification card issued pursuant to this article.†Subdivision (g) provides, “‘Identification
card’ means a document issued by the State Department of Health Services
that . . . identifies a person authorized to engage in the
medical use of marijuana and the person’s designated primary caregiver, if
any.â€
A
provision of the Medical Marijuana Program Act (MMPA) “directs the Attorney General
to develop and adopt appropriate guidelines to ensure the security and
nondiversion of marijuana grown for medical use by patients qualified under the
CUA.†(Colvin, supra, 203
Cal.App.4th at p. 1040, fn. 11.) “Those
guidelines are entitled to considerable weight but do not bind us. [Citation.]â€
(Ibid.)
Defendant
contends that the collective defense is unconstitutionally vague. However, there is a strong presumption that
against such a challenge unless their unconstitutionality appears clearly,
positively and unmistakenly. (
561, 568.) If any reasonable or
practical construction can be given to its language, it is not void for
vagueness. (Ibid.) Specifically,
defendant contends that the defense to possession of marijuana for sale and to
transportation of marijuana available to a collective is vague because section
11362.775 does not define a collective.
However, “[a]ll that is required is that the statute be reasonably
certain so that persons of common intelligence need not guess at its
meaning. [Citation.] ‘The requirement of reasonable certainty does
not preclude the use of ordinary terms to express ideas which find adequate
interpretation in common usage and understanding.’ [Citation.]â€
(People v. Silver (1991) 230
Cal.App.3d 389, 393, 394.) Section
11362.775 provides a defense for patients, card holders and their primary
caregivers who associate in order to collectively or cooperatively cultivate
marijuana for medical purposes. The fact
that the word “collective†is used colloquially to refer to this defense does
not necessitate it being defined. What
action is required is clear in the statute itself, i.e., the members must come
together in order to cultivate marijuana.
Defendant
also criticizes the MMPA for failing to define “profit†which neither an
individual nor a group is allowed to make in the cultivation or distribution of
medical marijuana. (§ 11362.765, subd.
(b).) First, any reasonable person knows
what profit means—it is whatever money is made from the sale of goods or
services that is above and beyond the actual costs of those goods or services. Additionally, as stated above, the act allows
a primary caregiver to receive compensation for “actual expenses, including
reasonable compensation incurred for services
provided . . . to enable [the patient or card holder] to
use marijuana†and for “out-of-pocket expenses in providing those
services . . . .†(§
11362.765, subd. (c).) If any
clarification of the notion of “profit†is required, section 11362.765,
subdivision (c), as reiterated above, provides it.
Next,
defendant asserts that because he “complied with what appears to be the
overarching concern of the MMPA by not providing marijuana to non-patients, the
law is unconstitutionally vague in light of his personal situation.†However, defendant’s premise is
incorrect. He does not cite any
authority that sets forth what the “overarching concern†of the MMPA is.
“cultivate[s] marijuana solely for the medical benefit of the members of the
collective†and “[c]ontributing members of a collective may only distribute
marijuana to other contributing members of the collective.†Both of these requirements are reasonable
inferences from the express provisions of the MMPA.
sold to persons who were not members of the collective the defense alleged
existed. Therefore, defendant does not
persuade us that the fact that he provided some marijuana to those with cards
or recommendations means that the MMPA is vague as applied to him. Moreover, there was evidence, i.e., the
texts, that he was in the business of supplying marijuana to those for whom
there was no evidence that they had either a card or a recommendation. Finally, as the People correctly point out,
this particular constitutional challenge, which requires an assessment of the
facts, is forfeited because it was not raised below. (In re
Sheena K. (2007) 40 Cal.4th 875, 886,
887.)
2. Admission of Evidence
a. Prior
Acts
Before
trial began, the People moved, pursuant to Evidence Code section 1101,
subdivision (b),
title="">[14] to be permitted to introduce into evidence
that in March 2007, defendant was pulled over by a police officer for an
equipment violation and when asked if there was anything in the car he was
driving, he said not that he knew of. He
claimed the car belonged to his daughter.
After defendant was arrested for driving on a suspended license and an
outstanding warrant, police found a baggie containing four grams of marijuana,
another bag containing 27 grams of cocaine and a digital scale. Defendant admitted that the marijuana was
his, but denied knowledge of the cocaine, although he said that his
fingerprints would probably be inside the box that contained the bag of
cocaine. He said the box did not belong
to his daughter. Defendant then said
that he had found the box in a restaurant parking lot, and variously described
where it had been situated. He said he
saw something black sticking out of the box, and, hoping it was money, pulled
it out. However, it was the scale. For reasons he claimed not to know, he put
the scale where it was found in the car by police and the box on the passenger
floorboard, intending to open the later and look inside when he got home. Then, he changed his story, saying that his
fingerprints might be inside the box and on the bag containing the cocaine
because he glanced inside the box.
However, he denied selling cocaine.
First, defendant said he never used any illegal drugs other than
marijuana, then changed his story, admitted that he had used cocaine in the
1970’s. As a result of this incident,
defendant pled guilty to possessing cocaine for sale.
The
People asserted that the foregoing was relevant to show that during the instant
offenses, defendant intended to sell marijuana, if defendant planned to claim
at trial that he did not intend to sell the marijuana or that it belonged to
someone else. The People also asserted
that this evidence was relevant to show a common plan or scheme, of which the
instant offenses were part.
name="_ftnref15" title="">[15] The similarities the People noted between the
2007 incident and the instant one were that in each, defendant, 1) had a
substantial amount of contraband and more than for personal use, 2) was in a
car he claimed he borrowed from a family member, 3) was in possession of a
scale, 4) initially denied that the contraband was his, and 5) possessed
marijuana. The People also asserted that
the probative value of this evidence outweighed its prejudicial impact.
As
is relevant here, defendant asserted in his written motion in limine only that
the prejudicial impact of this evidence outweighed its probative value. At the hearing on the motion, he reiterated
this position.
The
trial court ruled that the evidence was admissible, without elaboration. The jury was instructed that evidence of
defendant’s conviction of possessing cocaine for sale could be considered only
for the purposes of determining defendant’s intent to sell, his knowledge of
the nature of the marijuana
name="_ftnref16" title="">[16] and whether he had a plan or scheme to commit
the instant offenses. Defendant contends
that this ruling constituted an abuse of discretion. (People
v. Lewis (2001) 25 Cal.4th 610, 637.)
However, he makes this argument on bases he did not advance below, i.e.,
that the prior is irrelevant because in the instant case, defendant conceded
that he knew he possessed marijuana and that he intended to exchange it for
something of value and he intended to transport it to facilitate its use. Therefore, defendant abandoned these
bases. (Evid. Code, § 353.)
Moreover,
his position lacks merit. While the
defense attempted to mount a collective defense, the jury was free to reject
it. Once they rejected it, they were
left with determining whether the elements of each crime had been established
by the People beyond a reasonable doubt.
This included his intent to sell the marijuana. Absent a stipulation by him that he intended
to sell the marijuana, which he never entered into, the People still bore the
burden of proof as to this element. Unfortunately
for defendant, in mounting a collective defense, he contradicted the statements
he made to the officer who stopped him.
they were admitted and the People had the right to rebut his denial of
intending to sell the marijuana.
Defendant does not assert, nor can he, that the evidence at issue was
irrelevant to this element. We agree
with defendant that the evidence was prejudicial. However, that did not mean that the trial
court abused its discretion in admitting it.
b.
Prosecution Expert’s Testimony
The
prosecution’s expert testified that illegal dispensaries or cooperatives sell
marijuana for about $20 a gram, which is roughly the street price. He said that the most popular legal source of
medical marijuana for patients is a collective.
He was then asked whether, over the years, he has seen the types of
medical marijuana defenses change. He
said he had. There was no objection by
defense counsel. He was then asked what
was originally the predominant medical marijuana defense for people who were
actually distributing marijuana for profit.
Defense counsel objected on the basis of relevancy and was
overruled. The expert went on to respond
that for-profit distributors claimed to be caregivers, but that was no longer
used because guidance was provided about what it took to be a caregiver and
they did not meet the criteria. He
testified that after the caregiver defense went by the wayside, the cooperative
defense began to be used; however, it was no longer popular because a legal
definition of a cooperative had arisen, and “people typically who are
dispensing marijuana†did not fit within that definition. He then testified that the defense that arose
after cooperative was the collective defense.
testimony.
We
agree with defendant that the trial court abused its discretion in overruling
his objection to the question about the original defense used by people who
were distributing marijuana for profit.
It was irrelevant that others had tried to claim this defense in the
past. However, defendant attempted,
somewhat, to claim it for himself, and definitely claimed it on behalf of his
nephew, when he was stopped by the officer.
Given this and the overwhelming evidence against defendant, we cannot
agree that there is a reasonable probability that but for the admission of this
evidence, defendant would have enjoyed a more favorable outcome. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
3.
a. Marijuana
Defendant
contends there was insufficient evidence that the substance found in the trunk
of the car defendant was driving on May 1, 2009 was marijuana. We disagree.
As defendant concedes, the officer who stopped defendant testified that
the odor of marijuana came from the trunk.
this officer to identify the odor of marijuana into question, based on his
qualifications in the field of “controlled substances,†rather than marijuana,
specifically, and to assert, therefore, that his opinion was insufficient to
support this element of the offenses.
evidence: he told this officer that
“there was a couple of pounds of marijuana
in the bag†in the trunk. Defendant also
told this officer that he had a “medicinal card that allowed him to be a
primary caregiver so the amount of the marijuana
found wasn’t a concern.†Despite this,
defendant also told this officer “that the marijuana
[in the trunk] was not his marijuana†and “the marijuana . . . was for medicinal purposes for
[his nephew] dispensing it to medicinal
clients . . . .â€
Defendant’s nephew testified that defendant told him that he had told
the police that “the marijuana in the
trunk†belonged to the nephew.
Defendant’s passenger testified that defendant told him that “ the
[was his].†The passenger also testified
that defendant told him that he was fighting this case because he wanted to get
“his marijuana†back.
she was aware that there was “several pounds . . . [¶]
[of] marijuana†in the trunk of the
car. Another defense witness testified
that he had heard that defendant had been apprehended with “a large
sum . . . [¶] . . . [¶] [of] marijuanaâ€
in the trunk of the car. He testified
that defendant told him that he had been arrested and “everything that he had
on him including the marijuana was
taken.†Finally, the officer’s partner
testified that what was in the trunk was marijuana. Defendant advances no attack here on this
witness’s ability to identify marijuana.
All the foregoing more than sufficiently supports the jury’s implied
finding that the substance found in the trunk was marijuana.
As
background to this issue, before trial began, the parties discussed the
People’s list of anticipated witnesses.
Defense counsel asked that any witness who was going “to talk about what
the substance [in the trunk of the car] was†be excluded because “[he and the
prosecutor] tentatively reached an agreement
that . . . [the] substance . . . was
marijuana . . . .â€
In response, the prosecutor said that he was removing two potential
witnesses from the list, one who was to testify about the chain of custody for
the marijuana and another who was to testify that she determined that the
substances was, in fact, marijuana.
During trial, there were numerous referrals to the substance found in
the trunk as marijuana by the prosecutor, defense
counsel and the witnesses on both
sides.
without any objection by the defense.
When jury instructions were discussed, the prosecutor said he exorcised
from the instructions on both charged offenses the description of marijuana
“because I believe we have a stipulation that it’s marijuana†to which defense
counsel agreed. Therefore, while the
element that the substance defendant possessed or transported was marijuana was
left in the instructions for both offenses, missing from those instructions was
the definition of marijuana in the standard instructions.
said of this element, as to both crimes, “[In] the
trunk . . . was marijuana. . . .
[¶] . . . [¶] . . . [
defense counsel said when defendant was stopped and arrested “the
found . . . . [¶]
. . . [¶] . . . [The police said,
‘W]e got the marijuana, we have cash,
and we have text messages.[’] [¶] . . . [¶] The only one that had the possession of the
clearly a member of the collective. . . . [¶]
. . . [¶] [T]he
[prosecution] brought you no evidence as to how this marijuana got here. [¶]
. . . [Y]ou . . . had evidence of
people getting on the stand and saying[,‘T]hat marijuana in the trunk, yes, part of that was mine.[’] [¶] A
couple [members of the collective] actually said, [‘Y]es, the
mine.[’]†As does happen in the
confusion of trial, the parties, apparently, neglected to reveal to the jury
that they had entered a stipulation that the substance found in the trunk was
marijuana. However, by the time the jury
was called upon to determine, according to the instructions given, that what
was in the trunk was, in fact, marijuana, that finding had been made a foregone
conclusion by the actions of both counsel, in particular, defense counsel. Moreover,
defendant’s one and only defense, i.e., that he had the marijuana for a
legitimate collective, required him
to concede that what was in the trunk was marijuana.
contention that insufficient evidence supports such a finding is not only
unmeritorious, as we have already concluded, but it invites this court to join
in gamesmanship of which we will have no part.
A trial is a search for the truth, not a game of “gotcha.â€
b. Sufficient
Evidence that Defendant’s Activities Were Contrary to the Medical Marijuana
Laws
Defendant
first asserts that there was no evidence that he sold marijuana to people that
did not have medical marijuana cards or recommendations. However, this is not a sine qua non for his
conviction of transporting and possessing the marijuana for sale if other
conditions were met. As the People
correctly note, defendant relied on the defense that he and those who obtained
marijuana from him were part of a collective engaged in the cultivation of
marijuana and there was almost no evidence to support it.
Next,
defendant attacks the testimony of the prosecution’s expert. He asserts that his testimony about how
people in lawful collectives behave was entitled to no weight. However, we do not reweigh the jury’s implied
finding as to the credibility of a witness’s testimony. (People
v. Jones (1990) 51 Cal.3d. 294, 314.)
Next,
defendant asserts that regardless of whether he was a member of a collective,
he was entitled to sell medical marijuana to medical marijuana patients. He relies on section 11362.768, which became
effective January 1, 2011. It applies to
a qualified patient or a person with identification cards who transports or
processes marijuana for his or her own personal use, a designated primary
caregiver who transports, processes, administers, delivers or gives away
marijuana for medical purposes to the qualified patient of the caregiver or to
the person with an identification card who has designated that person as his or
her primary caregiver, any person who provides assistance to a qualified
patient or card holder or that person’s primary caregiver in administering
medical marijuana to the patient or card holder or a primary caregiver who
receives compensation for actual expenses or for payment of out-of-pocket
expenses in providing services to a qualified patient or card holder. (§§ 11362.768, subd. (a); 11362.765, subd.
(b).) It provides that “[n]o medical
marijuana cooperative, collective, dispensary, operator, establishment, or
provider who possesses, cultivates, or distributes medical marijuana pursuant
to this article shall be located within a 600-foot radius of a school.†(§ 11362.768, subd. (b).) It applies only to cooperatives, collectives,
dispensaries, operators, establishments or providers that are authorized by law
to possess, cultivate or distribute medical marijuana and that have a storefront
or mobile retail outlet which ordinarily requires a local business
license. (§ 11362.768, subd. (e).) Based on the statute’s reference to
“operators†or “establishments,†defendant asserts that “it does not matter if
[his] dominant role in the group meant that he was not operating as part of a
collective.†However, it is clear to us
that section 11362.768’s use of the words “operator†and “establishment,†along
with the entities named therein, was intended to bring every type of operation
that has a storefront or mobile retail outlet which ordinarily requires a local
business license within the ambit of its prohibition against operating such a
business near a school. We do not read
it as contradicting the very clear provisions of the MMPA that the only person
who can distribute marijuana to a qualified patient or card holder is their
designated primary caregiver. Moreover,
there was no evidence that defendant had a storefront or mobile retail outlet
which ordinarily requires a local business license. Defendant’s attack on that provision of the
instruction on the collective defense, i.e., “A single person who calls himself
a collective but merely supplies patients with marijuana has no defense under
the law†is equally unfounded. It is
based, in part, on the holding in People
v. Mentch (2008) 45 Cal.4th 274, 277, 278, that one whose caregiving
consists “principally of supplying marijuana and instructing on its use, and
who otherwise only sporadically took some patients to medical appointments†is
not a primary caregiver under the act.â€
Of course, we are bound by Mentch
we detect nothing in section 11362.768 which even inferentially contradicts
it. The other portion of the provision,
which is actually related to defendant’s argument about section 11362.768, is
its reference to a “single person.â€
However, that is just common sense—a single person cannot be considered
a collective. Moreover, other provisions
of the instruction quite logically referred to the collective as a group of
individuals.
title="">[26]
Finally,
in advancing his argument, defendant ignores the context of this case—a
context, he, himself, made the tactical decision to create, i.e. that he was
not guilty of either offense because he was operating a legal collective. If he wanted to make the argument that he was
an operator under section 11362.768, and was not part of a collective, he
should have done so, but he did not.
Even if he had, he would not have been entitled to a defense unless he
was a designated caregiver to everyone he supplied with marijuana, and he was
unable to do this at trial.
Defendant
next asserts that there was insufficient evidence that he was selling marijuana
for a profit. According to the
prosecution’s expert, he was, and the jury was entitled to rely on his opinion. Defendant’s arguments in this regard would
have been best left to the jury.
As
part of his insufficiency of the evidence argument, defendant asserts that to
the extent that the Medical Marijuana Program Act (MMPA) may be interpreted to
bar cash sales of marijuana, bar the making of profit or bar the payment of
reasonable wages for services performed, it is an unconstitutional amendment of
the CUA because, he asserts, these things substantially restrict the ability of
qualified patients to obtain medical marijuana.
First, defendant points to nothing that bars cash being given in
exchange for marijuana under the MMPA.
profit by any individual or collective (Qualified
Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 746), but
defendant fails to persuade us that this, in any way, substantially restricts
the ability of patients to obtain medical marijuana. Finally, as we have already discussed, the
MMPA allows caregivers to receive compensation for actual expenses, including
reasonable compensation for services provided, and payment for out-of-pocket
expenses. (§ 11362.765, subd. (c).)
4.
Jury Instruction
The
following instruction was given on defendant’s collective defense,
“The
Prosecution has the burden of proving to you beyond a reasonable doubt that the
defendant was not operating a collective.
[¶] A Medical Marijuana
Collective is a group composed of medical marijuana patients or their primary
caregivers who collectively cultivate marijuana solely for the medical benefit
of the members of the collective.
[¶] A Medical Marijuana
Collective must be jointly owned and operated by the members of the collective. [¶] A
Medical Marijuana Collective cannot make any profit from its marijuana
cultivation. [¶] The cultivation of the Collective’s marijuana
must be done by contributing members of the collective. [¶] A
collective cannot obtain its marijuana from anyone who is not a member of the
collective. [¶] Contributing members of a collective may only
distribute marijuana to other contributing members of the collective. [¶] A
Medical Marijuana Collective should track and record the source of the
collective’s marijuana. [¶] A Medical Marijuana Collective should
document the labor, resources and money contributed by each member. [¶]
Reimbursement by members of the collective can only be to cover actual
costs and operating expenses. [¶] A single person who calls himself a
collective but merely supplies patients with marijuana has no defense under the
law.â€
Defendant
here asserts that he was “entitled to an instruction that as a medical
marijuana patient, he was entitled to make cash sales of medical marijuana to
other medical marijuana patients, but not to non-patients.†First, nothing in the instructions given
prohibited defendant from getting cash in exchange for marijuana and the
prosecutor never argued that defendant was guilty of either offense because he
received cash, which was prohibited by the law.
did not advance the defense that he, himself, was a medical marijuana patient.
given, we are convinced beyond a reasonable doubt that the absence of it did
not contribute to the verdicts. (
367.) As we have already stated,
defendant voluntarily took upon himself the defense of being part of a
collective. This required enough
evidence that he was a designated primary caregiver to the people to whom he gave
marijuana and that he and they were part of a collective that cultivated
marijuana to create a reasonable doubt that he was guilty of both charged
offenses. There was no such evidence. Therefore, we also reject defendant’s
contention that his trial attorney was incompetent for not requesting this
instruction.
As
for defendant’s contention that the jury should have been instructed on the
difference between making a profit and operating a business for profit, we have
already concluded that the MMPA is quite clear in its prohibition on making a
profit,
reasonable jurors, and no further elaboration of the subject was required.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Health and Safety Code unless otherwise indicated.
name="_ftn2" title=""> [2] The passenger said he had a medical marijuana
card and he showed the officer paperwork from a doctor’s office, but he was
eventually cited for possessing this marijuana because the officer could not
verify that the passenger possessed the marijuana for a medical purpose. The passenger also admitted owning a
marijuana pipe, which the officer found on the passenger side floor of the
car.
