P. v. Moss

Filed 9/14/07 P. v. Moss CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Russell Fong, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

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After a jury found John Eldon Moss guilty of possession of concentrated cannabis and misdemeanor possession of marijuana and he admitted a serious felony prior, the court sentenced him to an aggregate term of five years and four months in state prison four years (double the midterm) on the felony, six months concurrently on the misdemeanor, one year and four months consecutively on two felonies on which he was on probation at the time (eight months consecutively for injuring a telegraph, telephone, or cable television line and eight months consecutively for attempted burglary), and two years concurrently on a third felony on which he was on probation at the time (possession of methamphetamine). (Health & Saf. Code, 11357, subds. (a), (c), 11377, subd. (a);^[1]Pen. Code, 459, 591, 664, 667, subds. (b)-(j), 1170.12, subds. (a)-(e).)

On appeal, Moss argues that the court erred in instructing the jury with language from section 11362.795 on the use of medical marijuana by a person on probation. The Attorney General argues the contrary. We will affirm the judgment.

DISCUSSION

At trial, Moss testified that he told his probation officer that he had a medical marijuana card and that he showed that card to his probation officer, who told him that medical marijuana do not ride with probation. His probation officer testified to the contrary. The probation departments computer system showed that another probation officer told Moss that the county does not allow probationers to use marijuana for any purposes.

Mosss testimony raised a medical marijuana defense under the Compassionate Use Act (CUA), which is codified as section 11362.5. The CUA ensures, inter alia, 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 persons health would benefit from the use of marijuana. ( 11362.5, subd. (b)(1)(A).) The CUA makes the possession of marijuana no more criminal so long as its conditions are satisfied than the possession and acquisition of any prescription drug with a physicians prescription. (People v. Mower (2002) 28 Cal.4th 457, 482.)

In reliance on People v. Spark (2004) 121 Cal.App.4th 259 (Spark) and section 11362.5, subdivision (d), Moss argues that since the CUA states the requirements of the medical marijuana defense the instruction with language from section 11362.795 on the use of medical marijuana by a person on probation prejudiced him by impermissibly lowering the prosecutions burden of proof and making a guilty verdict reasonably likely despite his use of marijuana for medical purposes. We disagree.

Section 11362.5, subdivision (d) reads as follows:

Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patients primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

The instruction at issue, which sets forth virtually verbatim the text of section 11362.795, subdivisions (a)(1) and (a)(3), reads as follows:

A criminal defendant who is eligible to use marijuana pursuant to the Compassionate Use Act may request that the court confirm that he be allowed to use medical marijuana while hes on probation. During the period of probation if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation to authorize the use of medical marijuana.

The general issue in Spark, as here, was whether the jury was erroneously instructed on the defense of compassionate use. (Spark, supra, 121 Cal.App.4th at p. 262.) The specific issue in Spark, however, was whether the essence of the medical marijuana defense includes, as did the instruction in that case, a requirement that he present evidence that he was seriously ill. (Id. at p. 266.) Noting that the only reference in the CUA to seriously ill was in prefatory language, Spark held that the entirety of the language of the statute showed that the question of whether the medical use of marijuana is appropriate for a patients illness is a determination to be made by a physician and is not to be second-guessed by jurors who might not deem the patients condition to be sufficiently serious. (Id. at p. 268.) Finding the instructional error prejudicial, Spark reversed the judgment. (Id. at p. 269.)

The instruction at issue here, however, unlike that in Spark, did not impose any additional requirement that Moss present evidence over and above that required by the CUA. Whether or not he made requests pursuant to section 11362.795, subdivisions (a)(1) and (a)(3) that the court confirm that he be allowed to use medical marijuana while hes on probation or that he be granted a modification of the conditions of probation to authorize the use of medical marijuana, instruction with the language of that statute imposed no additional burden to establishing a successful medical marijuana defense under the CUA. That he did not make those requests did not impair his invocation of the medical marijuana defense at trial. Spark is inapposite.

Since a jury would have no difficulty understanding the straightforward language of section 11362.795, subdivisions (a)(1) and (a)(3) without guidance, the general rule applies that the language of a criminal statute is an appropriate and desirable basis for an instruction. (See People v. Estrada (1995) 11 Cal.4th 568, 574, citing People v. Poggi (1988) 45 Cal.3d 306, 327.) The court is entitled to instruct on all theories raised by the evidence even if counsel chooses to espouse another theory. (See People v. Stewart (1968) 267 Cal.App.2d 366, 372, fn. 3.) We reject Mosss argument.

DISPOSITION

The judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Wiseman, J.

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^[1]All subsequent statutory references are to the Health and Safety Code unless otherwise noted.