P. v. Nivison
Filed 5/8/13 P. v. Nivison 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sacramento)
----
>
THE PEOPLE, Plaintiff and Respondent, v. RONALD CLAIRE NIVISON, Defendant and Appellant. | C071145 (Super. Ct. No. 12F00948) |
Twenty-six-year-old
Ronald Nivison’s sole defense at his trial for possession of six and one-half
pounds of marijuana for sale was that he grew and packaged it for medicinal
purposes for himself and his father, both of whom had medical marijuana
identification cards, and he had no intent to sell it. On appeal, he contends the trial court, as
well as his own lawyer, wrongly concluded that the Medical Marijuana Program
(Health & Saf. Code, § 11362.7 et seq.) did not provide a defense to
possession for sale. Thus, he contends
the jury was not properly instructed, he was denied his
and he is entitled to a reversal. We
disagree and affirm the judgment.
FACTS
In February
2012 defendant was on probation for commercial (second degree) burglary and
unemployed. He testified he smoked about
10 joints of marijuana a day to mitigate his chronic back and elbow pain,
migraine headaches, and insomnia.
Without a job, he could not afford to buy his marijuana, so he had
planted 12 marijuana plants in the spring of 2011 and began harvesting the ones
that survived later that fall; he “pulled the last plant out of the ground†in
December. He lived in a small trailer
parked in his father’s backyard.
A deputy
sheriff conducted a probation search of the trailer on February 2, 2012.
He found a plastic Tupperware storage tub containing approximately 1,300
grams of marijuana, and 19 bags of marijuana, some of which were “Ziplockâ€
bags, some of which were “biohazard†bags, and some of which were garbage-type
bags. Some of the bags were labeled with
the strain of marijuana they contained. Others were labeled with quantities that are
typically sold on the street, but the actual weight of the marijuana did not
correspond to the labels. The total
weight of all the marijuana inside the trailer was 2,950.85 grams, or
approximately six and one-half pounds.
The deputy
also found tare weights used for calibrating a scale, along with all of the
packaging materials. In the bathroom
located two or three steps from the packaging area, he confiscated a shotgun
and a rifle, both loaded. He opined that
based on the volume of marijuana, coupled with the tare weights, packaging, and
guns, defendant possessed the marijuana primarily for sale.
The deputy
did not find any of the other accoutrements typical of a sales operation, such
as a cell phone, scale, pay-owe sheets, or cash. There had been no reports of foot traffic to
and from the trailer. Nevertheless, he
explained to the jury that the marijuana, like lettuce or broccoli, would
degrade over time. The marijuana he
found in the trailer would have lasted only four to six months because of the
way in which it was packaged.
The
prosecutor played two tape recordings of defendant talking to his girlfriend
and to an unidentified male during jail visits.
In the first, defendant asked his girlfriend to tell his father to
upgrade his “prop 215†card to allow him to have more than eight ounces of
marijuana in his possession. In the
second, he maligned the state of California
for paying half of the cost of medical marijuana through Medi-Cal. Laughing, he declared that when he was
released he was going to get “so fucking stoned it ain’t even gonna be funny
man.â€
But
defendant told the jury he did not intend to sell the marijuana he
cultivated. He grew what he hoped would
last a year. The deputy sheriff testified
that an average user smokes between 6 and 8 grams of marijuana a day. If one individual were to consume 8 grams of
marijuana a day, the marijuana found in the trailer would last for 368.8 days. But defendant testified that he planned to
share it with his father.
Defendant
also explained the presence of the tare weights and the biohazard baggies. On occasion, he purchased the contents of
storage units, and in one of the units he found the tare weights he later used
to weigh down the branches of his marijuana plants. He obtained the biohazard, or “medical,†bags
from a house he was employed to clean out.
The jury
found defendant guilty of possession of
marijuana for sale while armed with a firearm. (Health & Saf. Code, § 11359; Pen. Code, §
12022, subd. (a)(1).) Defendant appeals.
DISCUSSION
The
Compassionate Use Act of 1996 (Act; Health & Saf. Code, § 11362.5), adopted
by the voters as a state initiative, is narrowly drafted and did not
“decriminalize marijuana on a wholesale basis.â€
(People v. Urziceanu (2005)
132 Cal.App.4th 747, 772-773 (Urziceanu).) The purposes of the Act are: “(A) 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 cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other illness for which
marijuana provides relief. [¶] (B) To ensure that patients and their primary
caregivers who obtain and use marijuana for medical purposes upon the
recommendation of a physician are not subject to
(b)(1).) The Act did not provide a
defense to possession of marijuana for sale.
(People ex rel. Lungren v. Peron
(1997) 59 Cal.App.4th 1383, 1389.)
The Legislature,
however, sought to clarify the scope of the Act and to promote the uniform and
consistent application of it by enacting the Medical Marijuana Program Act
(Program). (Health & Saf. Code, §
11362.7 et seq.) Contrary to the
position he took at trial, defendant now contends it is this legislation, not
the Act, that provides a defense to possession for sale. We need not determine the scope or
applicability of any potential defense under the Program because defendant’s
sole defense would have been at odds with the defense he concocts for purposes
of appeal.
The defense
was simple and straightforward—he did not intend to sell the marijuana in his
possession. He testified he grew and
harvested the marijuana plants for medicinal purposes only for himself and for
his father. Thus, he hoped the jury
would find he did not entertain the requisite intent to support a
possession-for-sale charge.
To the
extent the Program expands the protections provided by the Act to additional
crimes, including possession for sale, it is only to qualified patients or to
primary caregivers. (Health & Saf.
Code, §§ 11362.765, 11362.775.)
Defendant did not testify that he intended to sell the marijuana to
other qualified patients or to their primary caregivers. Indeed, such a suggestion would be
inconsistent with his defense that he possessed it exclusively for himself and
his father. There is absolutely no
evidence in this record that he intended to sell it to the narrow class of people
sanctioned under the Program. (Health
& Saf. Code, § 11362.765, subd. (c).)
Nor was there any evidence defendant was associating with others in
order to collectively or cooperatively cultivate marijuana for medical
purposes. (Health & Saf. Code, §
11362.775.) At oral argument, defendant’s
counsel disavowed any intent to argue that the Act or Program created a defense
to possession for sale. Rather, his
argument is that both acts accommodated defendant’s trial defense that
possession of a relatively large quantity of marijuana did not preclude a
finding that the possession was permitted for the medical needs of him and his
father and did not constitute possession for sale; the trial court erred in not
instructing the jury to this effect. No
such instruction was requested, nor was it required. And contrary to counsel’s claim at argument,
none of the instructions given impaired counsel’s ability to argue, as he did,
that the marijuana was not possessed for sale.
“ ‘It is
well settled that a defendant has a right to have the trial court . . . give a
jury instruction on any affirmative defense for which the record contains
substantial evidence [citation]—evidence sufficient for a reasonable jury to
find in favor of the defendant [citation]—unless the defense is inconsistent
with the defendant’s theory of the case [citation]. In determining whether the evidence is
sufficient to warrant a jury instruction, the trial court does not determine
the credibility of the defense evidence, but only whether “there was evidence
which, if believed by the jury, was sufficient to raise a reasonable doubt . .
. .†[Citations.]’ (People
v. Salas (2006) 37 Cal.4th 967, 982-983 . . . .)†(People
v. Mentch (2008) 45 Cal.4th 274, 288 (Mentch).)
Thus,
defendant’s argument on appeal fails not because the law proscribes a defense
but because the evidence does not support a jury instruction and it would be
inconsistent with defendant’s defense that he was in possession of the
marijuana not to sell it, but to use it to relieve his pain and suffering. Although the cases he cites may support a
hypothetical defense based on different evidence, they do not trigger a duty to
instruct on evidence that is not there.
(Mentch, supra, 45 Cal.4th 274; People
v. Windus (2008) 165 Cal.App.4th 634; Urziceanu,
supra, 132 Cal.App.4th 747.) The court did not err by failing to instruct
the jury sua sponte, and defendant’s
lawyer was not incompetent. Defendant
produced a viable defense, but the jury rejected it. He cannot change theories on appeal to get a
second bite at the apple.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
HULL ,
J.
