P. v. Khoury
Filed 3/21/13 P. v. Khoury CA2/1
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD KHOURY,
Defendant and Appellant.
B239108
(Los Angeles
Super. Court Nos.
PA066963, PA069046, PA066818)
APPEAL from
an order of the Superior Court
of
County. Cynthia
L. Ulfig, Judge. Affirmed.
Richard B.
Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris Attorney General, Dane R. Gillette, Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Michael R. Johnsen and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Defendant Richard Khoury, a
qualified medical marijuana
patient, operated three medical marijuana shops in the cities of
Northridge, Van Nuys and Encino. In 2010
and 2011, the Los Angeles Police Department executed search warrants at the
shops and Khoury’s home, seizing marijuana, cash, scales, computers, receipts
and business records. Khoury was charged
with cultivating marijuana and possession of marijuana for sale. (Health & Safety Code, §§ 11358,
11359.) He pleaded not guilty.
Prior to trial, Khoury filed a
notice that he would rely on an affirmative
defense provided by the Medical Marijuana Program Act, Health and Safety
Code
section 11362.7 et seq. Section
11362.775 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 Section 11357 ([possession of
marijuana]), 11358 ([cultivation of marijuana]), 11359 [(possession of
marijuana for sale)], 11360 [(transporting, importing, selling, furnishing, or
giving away marijuana)], 11366 [(maintaining a place for the sale, giving away,
or use of marijuana)], 11366.5 [(making real property available for the
manufacture, storage, or distribution of controlled substances)], or 11570 [(abatement
of nuisance created by premises used for manufacture, storage, or distribution
of controlled substance)].â€
Khoury argued he cultivated and
possessed marijuana as part of the operation of a medical marijuana collective
within the meaning of section 11362.775.
At a hearing on the matter Khoury represented he would prove he operated
a collective and each person who received marijuana from his operation was a
member of the collective. Under
questioning by the court Khoury’s counsel admitted that of approximately 4,000
members of the collective, only about a dozen actually worked in the
cultivation and distribution of marijuana; the remainder contributed only
money.
The trial court ruled that for a
medical marijuana collective to fall within the scope of the defense offered by
the Medical Marijuana Program Act, members must either take some action to
benefit the organization beyond the mere payment of money or be represented in
the collective by a primary caregiver.
The court found Khoury’s collective did not meet either of these
requirements. It therefore denied his
request to present an affirmative defense under section 11362.775.
Khoury then changed his plea to no
contest in exchange for a one-year jail sentence (which he had already served),
a suspended prison sentence, and five years probation.
Khoury obtained a
a timely appeal. We appointed counsel to
represent him on appeal, and after examining the record counsel filed an
opening brief raising no issues and asking this court to review the record
independently. On May 29, 2012, we advised Khoury he had 30 days
within which to personally submit any contentions or issues he wished us to
consider. He did not respond.
We also requested briefing on two
questions: Does section 11362.775
provide immunity or an affirmative defense?
Was Khoury’s offer of proof sufficient to send his section 11362.775
defense to the jury? Both Khoury’s
counsel and the Attorney General filed letter briefs answering both questions.
Khoury’s no contest plea limits the
potential scope of his appeal to “constitutional, jurisdictional, or other
grounds going to the legality of the proceedings,†“[g]rounds that arose after
entry of the plea and do not affect the plea’s validity,†or “[t]he denial of a
motion to suppress evidence under Penal Code section 1538.5.†(Pen. Code, § 1237.5, subd. (a); Cal. Rules
of Court, rule 8.304(b).) The record
demonstrates no such issue exists. (See
474-475 [section 11362.775 provides limited immunity to charges of possession
and cultivation of marijuana, an immunity that must be asserted by the
defendant as a defense]; People v. Marlin
(2004) 124 Cal.App.4th 559, 567 [by pleading no contest a defendant waives his
right to assert defenses].)
We have examined the entire record
and are satisfied that Khoury’s counsel has fully complied with the
responsibilities set forth in People v.
Kelly (2006) 40 Cal.4th 106, 109-110 and People v. Wende (1979) 25 Cal.3d 436, 441. No arguable issues exist.
DISPOSITION
The judgment is affirmed.
NOT TO BE
PUBLISHED.
CHANEY,
J.
We concur:
MALLANO, P. J.
JOHNSON, J.
attempting to dissuade a witness. (Pen.
Code, § 136.1, subd. (a)(2).) This count
was dismissed contingent upon the continuing validity of the plea and sentence
on the other counts.
Health and Safety Code.
