P.v . Kennedy

Filed 12/2/09 P.v . Kennedy CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tuolumne County. Eleanor Provost, Judge.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant/defendant Scott Kennedy and codefendant Jeremy Tosto were charged with the cultivation of marijuana, based upon their operation of an indoor garden, which consisted of 36 large and 409 germinating marijuana plants. Kennedy and Tosto relied on the affirmative defense that they were qualified patients lawfully using medical marijuana pursuant to the limited immunity provided by the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code,^[1] 11362.5). After a joint jury trial, Kennedy and Tosto were convicted as charged, and the court suspended imposition of their sentences and placed them on formal probation for five years pursuant to various terms and conditions, including service of five months in jail.

In this appeal, Kennedy challenges the validity of an officers warrantless entry into the commercial premises where the indoor garden was located. Kennedy also joins in all issues raised by Tosto in his separately-filed appeal, in which Tosto argues the jury was not properly instructed on the burden of proof and quantity limitations applicable to the CUAs affirmative defense, and the court improperly imposed fines and penalties without clarifying the statutory bases for its orders.^[2] We will remand the matter for the trial court to correct the imposition of fines and penalties, and otherwise affirm.

FACTS

At 7:30 p.m. on May 9, 2007, Corporal Kelly Dickson and Deputy Imlach of the Tuolumne County Sheriffs Department arrived at a business known as Bell Plastics, so Imlach could speak to Kennedy as a part of a felony investigation.^[3] Tosto was outside and working on a Jeep parked next to the building.

Imlach remained outside with Tosto, while Dickson entered the business through the unlocked front entrance doors and tried to find Kennedy. Dickson testified an Open sign was posted on the entrance doors, no one told him the business was closed, and there were no signs posted that stated the business hours. The entrance doors led to a large showroom that contained a cashiers counter, a desk area, and plastic merchandise stacked on numerous shelves.

Dickson identified himself and walked inside the building. No one was present or responded to his calls. He repeatedly called for Kennedy as he continued along a walkway that led to a rear door. To the left of the rear door Dickson observed an open door, which exposed a room with an indoor garden of marijuana and tomato plants. Without seeing or hearing anyone inside the building, he retraced his steps to the front door.

Dickson walked outside and encountered Tosto, Kennedy and Kennedys mother, Deborah Kennedy. Dickson asked each of them about the marijuana plants inside, and all three replied that they did not know what he was talking about. Dickson repeated his question and asked about [t]he tall green plants producing marijuana in your room, how could you not know about it? Theyre inside your building. Dickson asked the three individuals if it was their business. They replied affirmatively, but again said they did not know what he was talking about. When Dickson suggested they go inside to take a look because they did not know what he was talking about, the group declined. Dickson never threatened to get a search warrant.

Sergeant Johnson of the Tuolumne Narcotics Team responded to the business and spoke to Tosto and the Kennedys. Ms. Kennedy consented to his entry into the building to examine their paperwork and the marijuana plants.

Marijuana cultivation, cloned plants and usages

Detective Jarrod Pippin, the lead detective assigned to the Campaign Against Marijuana Planting (CAMP), arrived at Bell Plastics on the same evening that Dickson found the indoor marijuana garden. He described the facility as a large industrial-type building. Pippin believed he saw an open sign in the window. Pippin could not determine what type of business it was and disagreed with Dicksons description of the interior as a showroom. Pippin testified the large main room almost looked like a garage-sale type of thing. There was a ton of different things inside. Trinkets, tools, tables set up with stuff on top of the tables.

Pippin testified the indoor garden contained tables and trays with marijuana and vegetable plants in various stages of growth. There were a total of 445 marijuana plants, consisting of 409 germinating cloned plants and 36 larger plants. All the plants were female; there were no male plants. It was determined that the 409 seized plants consisted of 99.3 net grams of marijuana.

Pippin testified there are three growth stages for marijuana: (1) the germination stage for the first two or three weeks; (2) the vegetative stage for 30 to 60 days, when the majority of growth occurs; and (3) the flowering stage for the final 30 days, which produces the buds with THC, the cannabinoid that causes a psychoactive reaction when the buds are smoked. The plants die after they have flowered and must be replaced by new plants.

Pippin testified that only female marijuana plants contain THC in their flowering buds. Male marijuana plants do not produce THC, but have pollen sacs that pollinate female plants to produce seeds. Once pollination occurs, female plants produce seeds instead of THC buds. Thus, a person who is growing marijuana for medical usage would remove male plants before pollination to ensure the female plants have buds with THC. The buds remain potent for three to six months.

Pippin testified that marijuana plants can be grown from seeds or clones. If plants are grown from seeds, the grower would not know which plants were male until the pollen sacs appear, at which point the male plants would be removed to avoid pollination. In contrast, a clone is produced from clipping off and replanting part of a grown female plant of a preferred quality and variety.

Pippin testified that a marijuana clone takes any of the guessing games out of it, you dont have to worry about that plant turning into a male and having to get rid of it, you know its sex, you know its variety, you know the plant, you pulled it off of a good plant, the type, you got to have the bud, you want to create that, thats why people clone. Pippin explained that clones are obvious during the germination stage because they will have different root structures when pulled out of the soil, compared to plants grown from seedlings. Pippin testified that clippings are considered the same as marijuana plants because the second you put [the clipping] in the grow medium you can refer to it as a plant, and if you take that clipping and you embed it in some type of a grow medium, your intention for that is a plant.

Pippin testified the 409 germinating cloned plants found at Bell Plastics were in covered trays under fluorescent-type lights. These plants were still small and developing roots, and some were derived from clippings and planted in grow medium. The 36 larger plants were in pots. They had started to flower and were about 30 days away from producing buds for harvest. Pippin testified all the plants were healthy and well-cared for, and he believed every plant would have survived and grown to maturity.

Pippin testified that Tosto told him the plants were clones, some obtained from a cannabis club or some type of marijuana dispensary and others from clippings taken off their own existing plants. The plants were in an average type of hydroponic garden with a sophisticated cultivation system. There were small florescent lights over the grow trays, along with two higher quality and larger grow lights. Pippin testified that such lights are very expensive and result in high electric bills. As a result, law enforcement officers look for spikes in electric bills as evidence of indoor gardens. However, such gardens are harder to find when located in businesses where high electric bills are not as obvious.

Pippin testified that an average person would smoke five to 10 joints to stay high all day, which equates to 31.5 ounces per person for six months when calculated using the higher number of joints. The optimal potency life for marijuana is three to six months, after which a person would need to smoke twice as much marijuana to obtain the same effect, i.e., approximately 62 ounces per person for six months. Pippin testified that 248 ounces of reduced potency marijuana would keep four people high for six months.

Pippin estimated that each healthy plant found at Bell Plastics, if grown to maturity, could have produced at least six ounces of usable buds, resulting in approximately 2,454 total ounces (153.375 pounds or 69,939 grams) obtained from 409 plants.

Pippin testified that at the time of the investigation Tuolumne County followed state guidelines for possession of medical marijuana, which allowed one person to have no more than 12 immature or six mature plants at any given time. Pippin testified that based upon his prior investigations, if he determined that one person had valid paperwork and 24 mature plants, he would seize the appropriate number of plants to bring that person into compliance with state guidelines.

Pippin testified that one year prior to the discovery of the garden at Bell Plastics, he responded to Scott Kennedys residence and found about 76 marijuana plants in his backyard. Kennedy presented a valid physicians recommendation at that time. Pippin allowed Kennedy to keep 12 plants for his own personal use and seized the rest as beyond compliance with the state guidelines.

Pippin testified that after he examined the grow room at Bell Plastics, he determined that Tosto and Ms. Kennedy had valid, nonexpired medical recommendations to use marijuana as of May 9, 2007. Scott Kennedy had an identification card for an out-of-town cannabis club that expired on May 5, 2007, which meant he could not obtain marijuana or materials from that particular club. Kennedy did not present Pippin with any other paperwork, but Pippin recalled his prior encounter with Kennedy and that he presented a valid physicians recommendation the previous year.

Based on the three valid recommendations held by Tosto and the Kennedys, Pippin allowed Tosto to keep the 36 larger plants in pots (12 plants per person), and seized the 409 germinating plants in the trays. Pippin subsequently determined the physicians recommendation for Kennedy expired prior to May 9, 2007.

Defense evidence

Dr. Raymond Rowell is a licensed physician with a general practice in Livermore. He has about 8,000 patients and issues marijuana recommendations to about one out of eight or 10 patients. Dr. Rowell testified that on May 5, 2006, he treated Kennedy as a patient, and determined he suffered from very generalized conditions, anxiety, stress, insomnia, typically caused by stressors that everyone deals with, which would be amenable to treatment through marijuana use. Kennedy said he was using one gram of marijuana per day. Dr. Rowell issued a marijuana recommendation to Kennedy for one year. Dr. Rowell explained the one-year expiration was a conventional limitation to ensure the patient would return for further evaluation of symptoms. I dont consider that on 5-5-07, hes legal and then [on] 5-6-07 he is a criminal. [T]hat is not what that date is supposed to mean. He again saw Kennedy on August 18, 2007, and issued a two-year marijuana recommendation.

Dr. Rowell examined Tosto on August 8, 2006, based on a reference from Kennedy. Tosto reported that he suffered from migraine headaches, anxiety, stress, insomnia, nausea, and other symptoms related to migraines, and said he used one gram of marijuana per day, and three to five grams per week. Dr. Rowell issued Tosto a medical marijuana recommendation for one year. Dr. Rowell testified he did not know either Tosto or Kennedy very well and explained: How well can you really get to know someone by taking their basic medical stuff unless you make them come in all the time?

Christopher Conrad testified as a marijuana expert witness for the defense. He testified the marijuana plants seized in this case would only yield a quarter to half an ounce of bud per plant, for a total of eight ounces from the 36 larger plants. A patient would use 10 joints per day, which would require six pounds per year. Conrad testified the plants at Bell Plastics would have produced a total of one and one-half pounds to two pounds per year.

Conrad testified that according to federal law, a marijuana cutting becomes a clone when the root ball clearly attaches to the medium. Conrad testified that 300 of the 409 marijuana clones found at Bell Plastics had only the potential to grow into plants, because they had not taken root. When asked for federal authority on that point, Conrad testified that he believed it is in case law, but I cant point you to it because I just get hired to look for roots based on that section of the code.

Conrad explained that growers typically cultivate more plants than needed, and they cull or eliminate the plants with undesirable characteristics. Conrad testified the indoor garden at Bell Plastics could not have produced a reasonable amount of marijuana for medical use by three or four people. Conrad conceded the photographs of the clones showed healthy plants and the 409 germinating plants were capable of growing into maturity if properly cared for, but he claimed a typical indoor plant only produced a half ounce of bud. He thought the 36 larger plants would have produced a total of four and a half to eight ounces.

Conrad explained that state guidelines in effect when the plants were discovered in this case allowed a patient to possess 12 immature or six mature plants, but he explained there was currently a debate in the courts as to whether it was Constitutional for the legislature to put a cap on peoples gardens.

Rebuttal Evidence

Detective Pippin testified he usually gave medical marijuana growers the benefit of the doubt when he discovered plants in excess of the state guidelines. Instead of requesting that charges be filed against Kennedy when he found his outdoor marijuana garden the previous year, Pippin simply confiscated the extra plants. He examined 25 percent of the 409 germinating plants and observed roots coming from the bottom of the plants. No one at Bell Plastics told Pippin that they were going to cull or eliminate any of the marijuana plants in the grow room. Pippin testified that Conrads estimate of the small amount of marijuana that the 36 larger plants would produce was unbelievable.

The defense recalled Conrad, who testified that a recent court ruling held the state limits on the amount of marijuana plants a patient could possess was unconstitutional. Patients could now lawfully possess reasonable amounts of marijuana plants rather than specific quantities.

DISCUSSION

I. Denial of the suppression motion.

Kennedy and Tosto did not file a pretrial suppression motion. Both defendants did request the court to conduct a suppression hearing following Corporal Dicksons trial testimony about his warrantless entry into the business and discovery of the indoor marijuana garden. Following an extensive evidentiary hearing, the court found Dicksons warrantless entry was valid.

On appeal, Kennedy asserts Dickson conducted an illegal warrantless entry and search of the business, and he lacked any exigent circumstances to support his walk through the interior of the building and discovery of the marijuana garden. We will review the evidence adduced at the suppression hearing, the courts ruling and the validity of Dicksons warrantless entry.

A. The Suppression Hearing

At the suppression hearing, Dickson testified consistent with his trial account. He arrived at Bell Plastics with Deputy Imlach to contact Kennedy, who was a suspect in a robbery case. They saw Tosto outside the business. The officers acknowledged him, and Imlach indicated that Tosto was not Kennedy.

Dickson headed into the building to look for Kennedy. Dickson entered through the front double glass, swing doors. There was an Open sign and the door was unlocked. Dickson yelled for Kennedy, and walked through an area that he described as a showroom and the cashiers counter. The showroom had stuff everywhere. There was all kinds of shelving and merchandise, with plastic articles [a]ll over inside packages and loose in bins, and the items were not organized.

Dickson testified there was a walkway which led from the cashiers counter to the rear of the showroom. This area was not a hallway but an open area which led to an open doorway in the rear of the showroom, and he thought it might be a work area. He walked toward that doorway and continued to call out to anyone in the building, but no one responded.

Dickson testified he was still standing in the showroom when he looked to his left, through another open doorway, and he saw the marijuana garden. He never entered that room or opened the doors to any other rooms. Dickson walked out of the building and thought he had been inside for about three minutes.

Deborah Kennedy, Scott Kennedys mother, testified at the suppression hearing that she owned Bell Plastics, a plastic fabrication business. The regular business hours were 8:00 a.m. to 4:30 p.m., Monday to Friday, but they also worked on weekends and whenever they had business. There was a sign on the front door which said Open or Closed, and they turned it over every day. Ms. Kennedy conceded the business hours were not posted on the window.

Ms. Kennedy testified that she was at the business when the officers arrived around 7:30 p.m. The business was not open, the sign on the front door did not say Open, and no one was in the showroom. Ms. Kennedy testified the big open room was the showroom where retail customers look at products. There was a sales office, counter, and cash register partitioned within that area. There were numerous racks approximately 15-feet-tall in the showroom that held merchandise, with aisles between the racks. There was a very large space between a big hallway and racks and things in the showroom.

Ms. Kennedy testified that customers were not permitted to walk through the racks. Ms. Kennedy disputed Dicksons claim that he could see the marijuana plants from the showroom, and testified the room with the indoor garden was very much in the back. Well, its in the middle of the building, its just -- no, its in the middle, and added it was [f]ar away. Ms. Kennedy testified the businesss current layout was substantially similar to the way it appeared when Dickson entered the building.

After Ms. Kennedys testimony, the defendants requested the court to continue the suppression hearing so the defense investigator could take photographs of the buildings interior. The court agreed and resumed the trial evidence in front of the jury.

Later in the trial, the court reconvened the suppression hearing outside the jurys presence and heard additional evidence. Bill Perreira, the defense investigator, testified about photographs he took of the interior and exterior of Bell Plastics. The photographs showed that Dickson had to walk among the racks of shelves, to the back of the showroom, to see inside the grow room. It was 82 feet from the front door to the grow rooms doorway and Dickson had to walk 70 feet down the walkway, along the racks and shelves, to reach that doorway.

Ms. Kennedy testified the racks of shelves were always stacked with boxes and other materials, and a person could not see through the shelves. Ms. Kennedy testified a person would have to walk right up to the doorway of the grow room to see the marijuana plants.

As to the merits of the suppression motion, the defendants argued the issue was whether Dickson properly walked to the back of the showroom without permission or exigent circumstances. The court replied the photographs speak a thousand words, and I would have done exactly what the officer did if I were an officer. The court explained:

Based on the way the photographs and the way this is laid out, I think [the officer] could easily have ended up way at the back of this building. I dont think that I would have made the same decision had he gone through this door that is way at the back wall. That might have been excessive. But to walk through this area, which is the only area you can walk through if youre looking for somebody, it looks like, because there is so much clutter.

The defendants argued there was an expectation of privacy in the rear work area, an area not open to the public. They claimed that Dickson needed exigent circumstances to enter an area not open to the public, regardless of whether someone could walk to the rear of the showroom, particularly since the business was closed at 7:30 p.m.

The court denied the defendants suppression motion, explaining it initially agreed with their argument that the rear area of the showroom was not open to the public until reviewing the photographs.

And the minute I saw those photographs, I said, Oh, my goodness. I would have gone back there, too. Because what you have is a -- let me describe it for the record so the record is clear. But I want these photographs to be made part of this record.

First, you walk in and it is a massive amount of clutter. I love the expression showroom because there is no showroom here. You cannot see anything that would look like my concept of a showroom in a business. There is simply a bunch of stuff. There is stuff everywhere. There is stuff on tables. There is stuff on the floor. There is just stuff.

What -- first, I would wonder even what the business was, if I were an officer, called Bell Plastics. And I dont see anything particularly plastic. But you walk in, there is absolutely no demarcation this is a showroom part like Mrs. Kennedy described.

Then you see a hallway, and you really do see a very defined hallway. They have marked it by their piles of stuff on one side and their piles of stuff on the other.

And the testimony I heard was the door sat open. The door was open. Mr. Tosto is outside. He doesnt say to anybody, Wait a minute; were closed. Nothing. No words as far as I could get from the evidence.

So the officer is walking through and hes saying, Is anybody here? Im looking for Scott Kennedy. Or hes asking, Who is here? Is anybody here? Words to that effect. I dont remember exactly what the words were.

Of course, you would logically walk to the back because those -- youre quite right that the shelves totally hide, if someone is back there that you might want to talk to, and they might not hear you. When you hear that it is an -- 82 feet or something on the tape from the front to the back of the building, I think it would be very likely you wouldnt be heard if you were in the front of the building if somebody was there. I am trying to find Scott Kennedy. So you would walk down this very inviting hallway, and low and behold you walk right into the open space here where you could see in.

I dont think there is any doubt that once he got down there, he could see in an open door and see the plants. I know these photographs really helped me to decide to deny your motion. Im sorry that they had the opposite effect you expected, but there is no demarcation. There is not a sign. There is nothing that says, you know, that this is the work room or that this is the showroom. No. Absolutely not.

This is -- I would have done exactly what the officer did, and just for the exact same reasons. So, the motion is denied.

B. Analysis

In a suppression motion brought pursuant to Penal Code section 1538.5, the defendant has the burden of establishing his reasonable expectation of privacy in the premises searched, and must make a prima facie showing that law enforcement officers acted without a warrant. (People v. Williams (1999) 20 Cal.4th 119, 136; People v. Ayala (2000) 23 Cal.4th 225, 255.) Thereafter, the prosecution has the burden of establishing the reasonableness of the warrantless search. (People v. Williams, supra, 20 Cal.4th at pp. 136-137.)

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362.)

The Fourth Amendment prohibits unreasonable searches and seizures of commercial premises as well as private homes, and the government must generally obtain a warrant prior to entering commercial premises. (New York v. Burger (1987) 482 U.S. 691, 699; Marshall v. Barlows, Inc. (1978) 436 U.S. 307, 311-313 (Marshall); De La Cruz v. Quackenbush (2000) 80 Cal.App.4th 775, 780-781; People v. Potter (2005) 128 Cal.App.4th 611, 618 (Potter).) While an owner or operator of a business has an expectation of privacy in commercial property, the expectation of privacy in commercial premises is different from, and indeed less than, a similar expectation in an individuals home. (New York v. Burger, supra, 482 U.S. 691, 700.)

Within the workplace context, employees may have a reasonable expectation of privacy against intrusions by police. (OConnor v. Ortega (1987) 480 U.S. 709, 716.) An employees expectation of privacy must be assessed in the context of the employment relation, and that expectation may be reduced by virtue of actual office practices and procedures . (Id. at p. 717.) The employees reasonable expectation of privacy must be assessed within the context of the particular employment relation. (Id. at pp. 717-718.)

There are several well-established exceptions to the warrant requirement for commercial premises, including the open-to-the-public exception. (Potter, supra, 128 Cal.App.4th at p. 618; Marshall, supra, 436 U.S. at p. 315.)

[] Under the open-to-the-public exception, the government may enter and inspect commercial premises that are viewable by the public. [Citation.] What is observable by the public is observable, without a warrant, by the Government inspector as well. [Citations.] When a business owner opens his business to the public, he or she has no reasonable expectation of privacy in the area; accordingly, the government is free to conduct a search of the items in plain view during normal business hours. [Citation.] Moreover, such a search is not unreasonable even if the officers enter the premises purely for an investigative purpose. They do not have to enter for the purpose for which the general public enters. [Citation.] (Potter, supra, 128 Cal.App.4th at p. 618.)

For example, in People v. Doty (1985) 165 Cal.App.3d 1060, officers entered an auto wrecking yard looking for stolen vehicle parts and seized several stolen items. (Id. at p. 1063.) Doty held that when commercial premises are open to the public so as to allow the public to freely browse the premises, the police are equally entitled to enter and observe items in plain view during normal business hours. (Id. at p. 1067.) [W]hat is observable by the general public at a commercial establishment is also observable by police officers without a warrant. (Id. at p. 1066.) Doty held the officers entry and search at the wrecking yard was constitutional under the open to the public exception because: (1) the defendants auto wrecking yard was open to the public for business; (2) the officers were there during regular business hours; (3) the gates were open; (4) the items seized were in the open, accessible to all; and (5) the officers did not search any areas where the public was excluded. (Id. at pp. 1067-1068; cf. People v. Ramsey (1969) 272 Cal.App.2d 302, 309-310 [officers entry and search at industrial business was improper because it had been locked by the defendants and was not currently open for business].)

In the instant case, the record raises a preliminary question as to whether Kennedy had a reasonable expectation of privacy in the interior of Bell Plastics since his exact connection to the business was never clarified. Ms. Kennedys testimony inferred that both Kennedy and Tosto worked there. As she drew a diagram of the interior, she identified the work area that included Jeremys table, Scotts table. When she examined the photographs, Ms. Kennedy testified that a particular door led to Scotts room, and she seemed to imply the marijuana garden was in that room. Dickson testified that after he found the marijuana plants, he asked Tosto and the Kennedys if they owned the business. They replied in the affirmative, but repeatedly denied any knowledge about the marijuana plants.

While the defendant has the burden to establish a constitutionally reasonable expectation of privacy, the prosecution may lose the opportunity to challenge a defendants standing on appeal when it has acquiesced in contrary findings by [the trial court], or when it has failed to raise such questions in a timely fashion during the litigation. (Steagald v. United States (1981) 451 U.S. 204, 209; People v. Middleton (2005) 131 Cal.App.4th 732, 737, fn. 2.) The prosecutor did not raise the standing issue during the suppression hearing and the trial court herein addressed the motion under the assumption that both defendants had reasonable expectations of privacy in the premises. The People have not raised this issue on appeal, demonstrating acquiescence in the trial courts implied finding that the defendants had standing. (People v. Middleton, supra, 131 Cal.App.4th at p. 737, fn. 2.)

As for the merits, we find that Dickson validly entered and walked through the interior of Bell Plastics pursuant to the open to the public exception to the warrant requirement. While the officers arrived at the business at 7:30 p.m., the sign on the front door said Open, the front door was unlocked, and there was no signage as to the regular business hours. Tosto was the only person present when the officers arrived. Tosto was standing outside the business, the officers greeted him, he was still there when Dickson walked through the front door, and he never admonished Dickson that the business was closed. Upon entering the showroom, Dickson did not observe any signs, demarcations, or barriers to indicate the public was excluded from certain areas. He repeatedly called out for Kennedy, but no one responded. He was not asked to leave because the business was closed or informed that he was walking through a restricted area.

As the trial court explained, the photographs demonstrate the showroom was not a large open area bordered by the cashiers counter. Instead, it was filled with floor-to-ceiling racks and shelves, the shelves were full of boxes and other items, and the floor and walkways were cluttered with large and small items. The racks formed a walkway which led toward the rear of the showroom, directly toward the open doorway that led into another part of the building. Dickson testified he walked down that walkway but did not go through the open doorway. Instead, he looked to his left through another open doorway, saw the indoor garden in plain view, and immediately recognized the marijuana plants. He was still standing in the large and cluttered showroom when he saw the plants. He did not open any doors or enter any other part of the interior.

While the open doorway into the grow room may not have been visible from the front doors, it was clearly visible to a person who walked among the clutter and shelves in the showroom. Ms. Kennedy testified that the rack/shelf area was not open to the public, but the photographs clearly demonstrate that a customer could have reasonably believed it permissible to walk among the shelves, racks, and general clutter in the showroom. Dicksons warrantless entry and walk through the showroom was valid under the open to the public exception, and he observed the marijuana plants in plain view through the open doorway. (Horton v. California (1990) 496 U.S. 128, 136-137 [under the plain view doctrine, the item must be in plain view, its incriminating character must be immediately apparent, the officer must be lawfully located in a place from which the object can be plainly seen, and the officer must have a lawful right of access to the object itself].)

Kennedy complains that the trial court herein appeared to ignore the testimony of Deborah Kennedy that the business was closed, the sign on the front door said Closed and customers were not allowed to walk around the racks and shelves. Kennedy further argues that Dickson should have known the business was closed because it was 7:30 p.m., no one was inside and he was not in a place where the public was invited since he walked past the cashier area. Dickson testified that the sign on the front door said Open, there were no business hours posted and Tosto was standing outside when Dickson walked in and never cautioned Dickson that the business was closed. When Dickson walked out of the building, he encountered Tosto and the Kennedys, but none of them said the business was closed. The trial court herein rejected Ms. Kennedys credibility on these issues, and we defer to the trial courts factual findings since they are supported by substantial evidence. (People v. Glaser, supra, 11 Cal.4th at p. 362.) Moreover, Ms. Kennedy conceded there were no signs posted about the regular business hours, and further conceded they also worked on weekends and whenever they had business.

While the officers never obtained a search warrant in this case, we further note the trial evidence established that after Dickson discovered the indoor garden, Sergeant Johnson arrived and spoke to Tosto and the Kennedys about the marijuana plants. Dickson testified that Ms. Kennedy consented to a search of the grow room to count the plants and review their paperwork. Ms. Kennedy did not dispute Dicksons testimony on this point.

We thus conclude the trial court properly denied the suppression motion, Dicksons warrantless entry and walk through the premises were valid under the open-to-the-public exception, he saw the marijuana plants in plain view and Ms. Kennedy, the owner of the business, subsequently consented for officers to enter the grow room and examine the marijuana plants.

II. CALCRIM No. 2370.

Kennedy joins in an instructional issue raised by Tosto, that the court improperly instructed the jury with CALCRIM No. 2370, as to the elements of the affirmative defense that he lawfully cultivated marijuana for his own personal medical needs. The defendant argues this instruction improperly shifted the burden to the defense to prove the existence of the medical marijuana defense by a preponderance of the evidence.^[4]

A. The CUAs affirmative defense

Section 11357 criminalizes the possession of marijuana, while section 11358 criminalizes the cultivation of marijuana. The CUA ( 11362.5) was added by voter initiative [t]o 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 persons health would benefit from the use of marijuana in the treatment of any illness for which marijuana provides relief. ( 11362.5, subd. (b)(1)(A); People v. Mower (2002) 28 Cal.4th 457, 463 (Mower).) The CUA was also enacted [t]o 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 criminal prosecution or sanction. ( 11362.5, subd. (b)(1)(B).)

Section 11362.5, subdivision (d) of the CUA grants a limited immunity from prosecution for the offenses of possession or cultivation of marijuana, and allows the defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial. (Mower, supra, 28 Cal.4th at p. 464.) It states:

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. ( 11362.5, subd. (d).)

As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal -- so long as its conditions are satisfied -- than the possession and acquisition of any prescription drug with a physicians prescription. [T]he provision renders possession and cultivation of marijuana noncriminal under the conditions specified. (Mower, supra, 28 Cal.4th at p. 482.)

[] In sum, the defense provided by section 11362.5(d) relates to the defendants guilt or innocence, because it relates to an element of the crime of possession or cultivation of marijuana. Thus, this defense negates the element of the possession or cultivation of marijuana to the extent that the element requires that such possession or cultivation be unlawful. (Mower, supra, 28 Cal.4th at p. 482, italics in original.)

In Mower, the California Supreme Court held the existing jury instruction on the section 11362.5, subdivision (d) defense was invalid because it expressly stated the defendant had the burden of proof as to the underlying facts of the defense by a preponderance of the evidence. (Mower, supra, 28 Cal.4th at p. 464.) In doing so, Mower clarified that the defendant has the burden of proof to raise a reasonable doubt as to the facts underlying the defense contained within section 11362.5, subdivision (d) of the CUA. (Ibid.) Mower based its conclusion on the rule of convenience and necessity, which states unless it is unduly harsh or unfair, the burden of proving an exonerating fact may be imposed on a defendant if its existence is peculiarly within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient. [Citations.] (Id. at p. 477.) The facts underlying the defense are that the defendant was a patient or primary caregiver, that he or she possesse[d] or cultivate[d] the marijuana in question for the personal medical purposes of [a] patient, and that he or she did so on the recommendation or approval of a physician [citation]. The existence of these facts is peculiarly within a defendants personal knowledge, and proof of their nonexistence by the prosecution would be relatively difficult or inconvenient. (Ibid.)

Mower further held that as to the facts underlying the defense provided by section 11362.5(d), defendant is required merely to raise a reasonable doubt, rather than to prove those facts by a preponderance of the evidence. (Mower, supra, 28 Cal.4th at pp. 481, 464.) In reaching this conclusion, Mower relied upon Evidence Code section 501, which provides that when a statute allocates the burden of proof to a defendant on any fact relating to his or her guilt, the defendant is required merely to raise a reasonable doubt as to that fact. (Mower, supra, 28 Cal.4th at p. 479; Evid. Code,  501.) The defendant may prove the elements of [the] given defense merely by raising a reasonable doubt as to their existence or nonexistence. (Mower, supra, 28 Cal.4th at p. 483.)

Mower thus held the defendant may not merely point to the defense, but has the burden to raise a reasonable doubt about the facts underlying this [affirmative] defense. (People v. Frazier (2005) 128 Cal.App.4th 807, 818, 820.)

As applicable to the instant case, the defendant argues that the instruction on the CUAs affirmative defense did exactly what was condemned in Mower: it allocated to the defendant the burden of proving the underlying facts of the CUA defense by a preponderance of the evidence. This argument is based upon a single phrase taken out of context from CALCRIM No. 2370, that the defendant had the burden of producing evidence tending to show his cultivation of marijuana was for personal medical purposes.

It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] [T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial. [Citation.] The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. [Citation.] [Citation.] (People v. Bolin, supra, 18 Cal.4th at p. 328.)

The entirety of the instructions refutes the defendants claim of instructional error. Kennedy was charged with unlawfully planting or cultivating marijuana in violation of section 11358. The jury was instructed that the prosecution had the burden of proving the elements of the offense, that the defendant unlawfully planted or cultivated one or more marijuana plants, and the defendant knew the substance he planted or cultivated was marijuana. (CALCRIM Nos. 2370, 220.)

As demonstrated, ante, both defendants relied upon the CUAs affirmative defense, as stated in section 11362.5, subdivision (d), based upon the trial evidence that they had seen the same physician, received medical recommendations to use marijuana for various physical ailments, and they possessed a reasonable amount for their medical needs. As such, the jury received CALCRIM No. 2370, which states in relevant part:

[] Possession of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that his possession or cultivation of marijuana was for personal medical purposes or as the primary caregiver of a patient with a medical need with a physicians recommendation or approval. The amount of marijuana possessed must be reasonably related to the patients current medical needs. If you have a reasonable doubt about whether the defendants possession or cultivation of marijuana was unlawful under the Compassionate Use Act, you must find the defendant not guilty. (Italics added.)

While the defendant claims that the first italicized phrase, tending to show, required the jury to find the underlying facts true by a preponderance of the evidence, this argument ignores the second italicized phrase, which clearly informed the jury that it was required to find the defendants not guilty if the jury had a reasonable doubt about whether the defendants cultivation of marijuana was unlawful under the CUA. This is completely consistent with Mowers analysis of the allocation and nature of the burden of proving the CUAs affirmative defense.

The entirety of the instructions further refutes the claim of instructional error. The jury was instructed on the prosecutions burden of proof beyond a reasonable doubt (CALCRIM No. 220), and that the defendants had an absolute constitutional right not to testify and could rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. (CALCRIM No. 355.) The jury also received an instruction on the defendants alleged mistake of fact (growing marijuana in the mistaken reliance upon the CUAs affirmative defense):

[] The defendants are not guilty of a violation of section 11358 if they did not have the intent required to commit the crime because they reasonably did not know a fact or reasonably and mistakenly believed a fact.

If a defendants conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit a violation of section 11358.

If you find that a defendant believed that the defendants were lawfully planting and cultivating a quantity of marijuana appropriate to their medical needs, and if you find that belief was reasonable, he did not have the intent required for a violation of section 11358.

If you have a reasonable doubt about whether a defendant had the intent required for a violation of section 11358, you must find him not guilty of that crime. (CALCRIM No. 3406.)

The jury received two special instructions about the relevance of a physicians recommendations to use marijuana for a medical purpose. The court instructed the jury that it could not consider, or speculate about, the nature of the medical condition for which a defendant was given a recommendation for marijuana use by a physician under the Compassionate Use Act. This is a medical determination and is not subject to review or scrutiny by you. The only fact for you to determine is whether a defendant has presented evidence tending to show that he had such a recommendation. The jury was further instructed that the expiration of a physicians recommendation did not mean, as a matter of law, a defendant could not continue to possess marijuana so long as that marijuana is possessed for a defendants personal medical needs.

The entirety of the instructions thus reflects the jury was properly instructed according to the nature and allocation of the defendants burden of proof as to the CUAs affirmative defense, consistent with the Supreme Courts interpretation of that burden in Mower. There is no reasonable likelihood the jury believed the defendant had to prove the underlying facts for the CUAs affirmative defense by a preponderance of the evidence.

B. Mentchs concurring opinion

The defendants claim of instructional error further relies upon language in Justice Chins concurring opinion in People v. Mentch (2008) 45 Cal.4th 274 (Mentch) to support his argument that CALCRIM No. 2370 misstated the defendants burden of proof as to the CUAs affirmative defense. Mentch addressed the definition of a primary caregiver under the CUA and the subsequently-enacted Medical Marijuana Program Act (MMP), and held the defendant therein was not entitled to the defense instruction since he was not a primary caregiver. (Mentch, supra, 45 Cal.4th at pp. 277-278, 292.) Additional briefing was requested as to whether the defendants burden to raise a reasonable doubt regarding the CUAs affirmative defense was a burden of producing evidence under Evidence Code section 110 or a burden of proof under Evidence Code section 115. (Mentch, supra, 45 Cal.4th at p. 293.) However, Mentch declined to address this issue because it concluded the defendant was not entitled to the defense instruction.

Justice Chin filed a concurring opinion in Mentch, which agreed with the majoritys interpretation of the primary caregiver defense and addressed the instructional issues briefed by the parties but not addressed by the majority. Justice Chin acknowledged Mowers holding about the nature and allocation of the burden of proving the affirmative defense. The concurring opinion also acknowledged the jury in Mentch was instructed that, to establish the defense of compassionate use, the burden was on the defendant to raise a reasonable doubt as to guilt. (Mentch, supra, 45 Cal.4th at p. 292 (conc. opn. of Chin, J.).) Justice Chin noted the jury was further instructed that the prosecution had the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime. [Citation.] (Id. at pp. 292-293.)

Justice Chin wrote that the standard instructions did not place any burden whatever on the defendant. (Mentch, supra, 45 Cal.4th at p. 292 (conc. opn. of Chin, J.).) He further wrote that in response to the courts briefing request, the parties agreed about the nature of the defendants burden:

They agree that the defendants burden is only to produce evidence under Evidence Code section 110, and that once the trial court finds the defendant has presented sufficient evidence to warrant an instruction on the defense, the defendant has fully satisfied this burden; accordingly, the court should not instruct the jury on any defense burden.

If the parties answer to our question is correct, [the pattern instruction] misinstructs the jury. The Attorney General argues that any error in this case was harmless beyond a reasonable doubt for two reasons: (1) error in requiring defendant to raise a reasonable doubt as to a defense is inherently harmless in light of the instructions as a whole, which make clear to the jury that the prosecution has the overall burden of proof beyond a reasonable doubt; and (2) defendant simply did not establish the compassionate use defense. (Id. at p. 293.)

While Justice Chin acknowledged the instructional issue was not before the court, since the defendant was not entitled to the defense instruction, he wrote: Nevertheless, the question remains important as to whether the court should even instruct the jury on this burden, because an instruction on the defendants burden of production may run risks that are best avoided. (Mentch, supra, 45 Cal.4th at p. 294 (conc. opn. of Chin, J.).) Justice Chin advised trial courts to be cautious before instructing on any defense burden. (Ibid.)

The defendant herein relies upon Justice Chins concurrence and argues CALCRIM No. 2370 is similarly flawed. This reliance is misplaced. First, there is nothing in the instant instructions that tells the jury the defendants had the burden of proving the affirmative defense by a preponderance of the evidence. Second, Justice Chins concern about the instructions in Mentch was based on the basic question of whether further clarification of the nature of the burden of proof was required; the phrase tending to show in CALCRIM No. 2370 was not at issue or relied upon to demonstrate that the instruction was somehow confusing to the jury. Third, Justice Chin reasserted the courts support of Mower but raised the concern that trial courts should be cautious when instructing on the defense burden.

Even if CALCRIM No. 2370 could be subject to the interpretation suggested by the defendant, any error is necessarily harmless beyond a reasonable doubt given the entirety of the instructions. As set forth, ante, the jury herein was repeatedly instructed that the prosecution had the burden of proving the elements of the charged offense beyond a reasonable doubt, and the jury was required to find the defendants not guilty if it had a reasonable doubt that their acts were unlawful under the CUA.

III. The CUA and quantity limitations.

Kennedy next joins Tostos argument that the court undermined his affirmative defense because it failed to instruct the jury about the different quantity standards that applied to medical marijuana cultivators under both the CUA and the MMP. The defendant complains (1) the court only instructed the jury about the reasonable amount limitation contained within the CUA; (2) the court also should have instructed the jury about the specific quantity limitations contained in the MMP; and (3) the instructional omission was prejudicial because Tosto and the Kennedys lawfully possessed the 36 larger plants within the MMPs quantity restrictions.

The defendants instructional contention involves the interplay between the CUA of 1996 ( 11362.5), which was added by voter initiative, and the MMP ( 11362.7 et seq.), enacted by the Legislature in 2003. (Mentch, supra, 45 Cal.4th at p. 277.) As explained, ante, the CUA grants a limited immunity from prosecution for the offenses of possession or cultivation of marijuana, which allows the defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial. (Mower, supra, 28 Cal.4th at p. 464.)

The CUA does not limit the amount of marijuana that one may possess or cultivate in order to come within the purview of the statute, as long as the drug is possessed or cultivated for the personal medical purposes of the patient. ( 11362.5, subd. (d).) (People v. Windus (2008) 165 Cal.App.4th 634, 640.) A defendant may rely on the CUAs affirmative defense of lawful possession or cultivation despite the fact that his medical recommendation does not specify the amount he may possess . (Id. at p. 643.) Moreover, there is nothing in the [CUA] that requires a patient to periodically renew a doctors recommendation regarding medical marijuana use. The statute does not provide that a recommendation expires after a certain period of time. (Id. at p. 641.)

In People v. Trippet (1997) 56 Cal.App.4th 1532 (Trippet), the court addressed the amount of marijuana that a patient may lawfully possess or cultivate under the CUA. The defendant therein was charged with transportation and possession of more than 28.5 grams of marijuana, and the trial court refused to allow him to present evidence on the CUAs partial defense because those offenses were not included within the specific statutory language. Trippet reviewed the ballot pamphlets and initiative statements regarding the CUA, and held the partial defense applied to the charged offenses. (Id. at pp. 1547-1549.) In doing so, the court noted:

[W]e are not remotely suggesting that, even with a physicians recommendation or approval, a patient may possess an unlimited quantity of marijuana. The ballot arguments of the proponents are simply inconsistent with the proposition that either the patient or the primary caregiver may accumulate indefinite quantities of the drug. The statute certainly does not mean, for example, that a person who claims an occasional problem with arthritis pain may stockpile 100 pounds of marijuana just in case it suddenly gets cold. The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patients current medical needs. What precisely are the patients current medical needs must, of course, remain a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physicians opinion regarding the frequency and amount of the dosage the patient needs. (Id. at p. 1549, italics added.)

In 2003, the Legislature enacted the MMP, which was passed in part to address issues not included in the [CUA], so as to promote the fair and orderly implementation of the [CUA] and to [c]larify the scope of the application of the [A]ct. [Citations.] (Mentch, supra, 45 Cal.4th at p. 290.) In contrast to the CUA, the MMP includes specific quantity limitations and states that a qualified patient or primary caregiver may not