Filed 2/28/18 P. v. Trujillo 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PATRICK TRUJILLO,

Defendant and Appellant.
C080446

(Super. Ct. No. 14F04070)




Defendant Patrick Trujillo appeals from his conviction for possessing a controlled substance while in prison. Defendant contends the trial court violated his rights to due process, to present a defense, and to a fair jury trial by not permitting him to present the defense of medical necessity. He further argues the court erred in denying his request for a jury instruction on necessity.
We conclude defendant was not entitled to present a defense of medical necessity because Health and Safety Code section 11362.5 limits the common law medical necessity defense, as it relates to marijuana, to those who have “a physician’s recommendation or approval” for the use of marijuana and defendant had neither. (People v. Galambos (2002) 104 Cal.App.4th 1147, 1160-1161 (Galambos).) Accordingly, defendant also was not entitled to a jury instruction on necessity. We thus find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2014, defendant was incarcerated in the Sacramento County Jail. During a search of defendant’s cell, a sheriff’s deputy found a baggie containing 4.91 grams of marijuana, cigarette rolling papers, and pills in defendant’s underwear.
The People subsequently charged defendant with possessing marijuana in a penal institution. The People also alleged defendant had four prior strike convictions, served five prior prison terms, and had three prior convictions for possessing a controlled substance. Defendant pled not guilty.
At trial, defendant testified that another inmate had given him the marijuana because defendant was “having a lot of difficulty with pain.” Defendant explained that prior to his arrest, he had failed hernia surgery; he also had chronic back pain and arthritis. Prior to his arrest, defendant was scheduled for a second surgery and was prescribed “Norco” to manage his pain. Defendant went to the jail doctors several times but they would not perform the surgery and they would only give him Tylenol and Excedrin to manage the pain.
Defendant’s counsel asked defendant if he was currently in pain. The trial court stopped counsel and directed counsel to approach the bench. After the bench conference, defense counsel asked no further questions.
The following day defendant asked the court to instruct the jury with the defense of necessity. The court denied his request, finding the defense of medical necessity was not available to defendant because “no medical professional . . . has testified that he or she prescribed or recommended medical marijuana to treat his maladies or symptoms. The only person who testified that he needed the marijuana and that made him feel better was the defendant . . . .”
The jury ultimately found defendant guilty as charged and the trial court sentenced him to six years in state prison, awarding him 976 days of presentence custody credit.
DISCUSSION
Defendant contends the trial court’s “exclusion of the medical necessity defense deprived [him] of his rights to present a defense, to a fair jury trial, and to due process under the federal [C]onstitution.” He separately contends that he was entitled to a jury instruction on necessity. We disagree.
In 2002, this court held that the passing of section 11362.5 reflected a public policy decision to limit the defense of medical necessity for defendants charged with the cultivation or possession of marijuana. (Galambos, supra, 104 Cal.App.4th at pp. 1161-1162.) The new statutory defense of medical necessity applied only to “a patient or a patient’s primary caregiver, only for the crimes of possession or cultivation of marijuana, and only upon a physician’s recommendation or approval.” (Galambos, at p. 1161; see § 11362.5.) We concluded, the common law defense of medical necessity was “inconsistent with the more limited statutory exception” and allowing a defendant to employ the broader common law defense would “override” the voters’ “legislative determination.” (Galambos, at pp. 1162, 1161.) In short, defendants charged with possessing or cultivating marijuana were no longer entitled to the common law defense of medical necessity, but were limited to the more narrow, statutory defense.
Defendant contends he should not be limited to the narrow, statutory defense because he was incarcerated and did not have “alternatives.” Defendant cites no legal authority to support his contention. We are not persuaded.
He also argues that our construction of the voters’ intent in passing section 11362.5 was “too sweeping and should be limited or overruled.” In support of his argument, he notes the voters’ recent decision to decriminalize marijuana, as codified in section 11362.1. Defendant believes that with this shift in public policy, “we now have a bird’s[-]eye historical perspective in which to place [§ 11362.5] and Galambos.” This shift in public policy, however, is not the lens through which we view the voters’ intent 20 years ago. Their intent remains fixed in time, as we described it in Galambos.
Furthermore, the recently enacted section 11362.1 expressly does not “amend, repeal, affect, restrict, or preempt” laws related to the Compassionate Use Act, including section 11362.5. (§ 11362.45, subd. (i).) Thus, we do not accept defendant’s invitation to limit or overrule our decision in Galambos.
In sum, defendant was not entitled to the broad common law defense of medical necessity for possession of marijuana; defendant was limited to the defense of medical necessity found in section 11362.5. Section 11362.5 requires evidence that defendant had a physician’s approval or recommendation for the marijuana found on his person. Defendant presented no such evidence. Thus, the statutory defense of medical necessity was not available to him either. Because defendant was not entitled to the defense of medical necessity, he also was not entitled to a jury instruction on necessity. We find no error.
DISPOSITION
The judgment is affirmed.

/s/
Robie, Acting P. J.
We concur:


/s/
Duarte, J.


/s/
Hoch, J.