P. v. Fernandez
Filed 6/20/13 P. v. Fernandez CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN FERNANDEZ,
Defendant and Appellant.
B239865
(Los Angeles
County
Super. Ct.
No. KA092813)
APPEAL from a judgment of the Superior Court of
County, Mike Camacho, Judge.
Reversed and remanded.
Leonard J. Klaif for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Michael R. Johnsen and David E. Madeo, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
At
defendant and appellant John Fernandez’s jury trial for marijuana-related
offenses, the trial court refused to instruct on a medical marijuana defense
under Health and Safety Code section 11362.775
of the Medical Marijuana Program Act (MMPA).
Because there was evidence Fernandez possessed and transported the
marijuana for reasons related to his membership in a marijuana collective
sufficient to warrant instruction on the defense, we reverse the judgment and
remand for further proceedings.
FACTUAL AND
PROCEDURAL BACKGROUND
I. Factual background.
A.
On the afternoon of November 30, 2010, Los Angeles County Sheriff’s Department Sergeant
Jason Wolak was on patrol in La Puente when he saw Fernandez make
an unlawful lane change.
name="_ftnref2" title="">[2] As Sergeant Wolak approached Fernandez’s car,
he smelled marijuana. Fernandez admitted
he had marijuana in a backpack, but he explained he was a “vendor†who had just
sold marijuana to a dispensary in La Puente. Fernandez, who gave the sergeant a medical
marijuana card,
title="">[3]
said he made up to $250 per hour selling marijuana by the pound to
collectives. Two thousand dollars bundled
in rubber bands was in the car. In the
backpack were a large bag of marijuana and four individual packets or “little
medicine jars†containing marijuana.
Uncertain how to proceed, Sergeant
Wolak asked Detective Robert Wagner, a member of the Marijuana Dispensary Task
Force, to come to the location.
Fernandez repeated to Detective Wagner that he was a vendor selling
marijuana to dispensaries. He made about
$250 per hour selling marijuana and he had just sold a pound of it for $2,000,
which was also in the car. According to
the detective, the marijuana was packaged in the way in which dispensaries
package it. The “pill bottles†contained
samples for the dispensaries to smoke to determine the quality before buying.
Based on what Fernandez said, Detective Wagner
arrested Fernandez. In the detective’s
expert opinion, the marijuana was possessed for sale to dispensaries.
B.
Robert Ortiz is the director and a
member of Whittier Hope Collective (Whittier Hope or “the collectiveâ€)
in Whittier. He is also Fernandez’s brother. Whittier Hope applied for and received a
license under the city’s ordinance in 2010, and it received a seller’s permit
for marijuana from the state. The
collective pays taxes and is a registered nonprofit corporation. Membership in the collective is open to
“valid†medical marijuana patients who are California residents. Whittier Hope does not require its members to
agree not to become a member of another collective. The collective has approximately 5,500 members.
Whittier Hope gets its marijuana
from members. Because the collective’s
conditional use permit does not allow it to cultivate on premises, about
5 percent of its members donate excess marijuana they cultivate, and it is
redistributed to members who do not cultivate.
Members who donate marijuana are reimbursed for their expenses,
excluding labor. Reimbursement is
calculated based on “experience†and “common knowledge†of “how expensive
cultivating cannabis†is. Members who
get marijuana from the collective provide monetary reimbursement, called a
“donation.â€
Fernandez is a member of Whittier
Hope, and he cultivates marijuana, the excess of which he donates to the
collective. Fernandez, who lives with
Ortiz, cultivates the marijuana at their home. In November 2010, Fernandez was cultivating a
high quality strain of marijuana helpful for pain, joint relaxation, spasms,
and insomnia. Known as King Louis the
13th, the strain is very hard to cultivate successfully, and therefore it is
not easy to find.
On November
26, 2010, Whittier Hope advanced $2,000 out of a total $4,100 to Fernandez to
grow King Louis the 13th. A collective
member wanting to get the strain might reimburse the collective $20 for one
gram; $60 for an eighth of an ounce; $110 for a quarter of an ounce; $220 for
half an ounce; and $420 for one ounce.
Whittier Hope does not sell marijuana to other collectives.
Fernandez testified that he has been
a medical marijuana patient since 2006 and that in November 2010 he was
cultivating it. When Officer Wolak
stopped him, Fernandez had marijuana that was in the curing or “burpingâ€
process, which requires the marijuana to be checked every hour to hour and a
half. The marijuana in the large bag was
going to Whittier Hope once it finished curing.
Fernandez gave the officer his
medical marijuana card and a letter from Whittier Hope allowing him to
transport the marijuana. He did not tell
the officer he had just sold a pound of marijuana to a collective in La Puente
or that he was going to another collective in La Puente. He did not tell the officer he was paid $250
an hour to deliver marijuana to collectives.
The $2,000 was an advance from Whittier Hope, and he would get the
remaining $2,100 when he produced the marijuana.
He was in La Puente that day to pick
up a friend and take him to the friend’s girlfriend’s house.
II. Procedural background.
The
defense asked, before trial, that the jury be instructed on a medical marijuana
defense. After a lengthy pretrial
hearing on the matter, the trial court denied the request but allowed limited
evidence relevant to the defense to be admitted because it was also relevant to
Fernandez’s intent to sell. At the close
of evidence, the trial court again refused to instruct the jury on a medical
marijuana defense.
On February 16, 2012, a jury
found Fernandez guilty of count 1, possession of marijuana for sale (§ 11359)
and of count 2, transporting marijuana (§ 11360, subd. (a)).
After
denying Fernandez’s motion for a new trial based on the failure to instruct the
jury on a medical marijuana defense,
the trial court, on March 9, 2012, suspended imposition of sentence and placed
Fernandez on three years’ formal probation on the condition, among others, he
serve one year in jail.
DISCUSSION
I. There was sufficient evidence to support instruction on a
defense under section 11362.775.
The trial court refused to instruct
the jury on a defense under the MMPA.
But where, as here, there is substantial evidence of the defense, the
instruction must be given. The judgment
therefore must be reversed and the matter remanded.
“It is settled that, even in the
absence of a request, a trial court must instruct on general principles of law
that are commonly or closely and openly connected to the facts before the court
and that are necessary for the jury’s understanding of the case.†(People
v. Montoya (1994) 7 Cal.4th 1027, 1047.)
This duty to instruct includes instruction on affirmative defenses, if
the defendant is relying on such a defense, there is substantial evidence to
support the defense, and the defense is not inconsistent with the defendant’s
theory of the case. (
sufficient to ‘deserve consideration by the jury,’ that is, evidence that a
reasonable jury could find persuasive.
[Citation.]†(
201, fn. 8.) In determining whether the
evidence is sufficient to warrant instruction on a defense, 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.]†(Salas,
at pp. 982-983; see also People v.
Flannel (1979) 25 Cal.3d 668, 684 & fn. 12, superseded by statute on
other grounds as noted in In re Christian
S. (1994) 7 Cal.4th 768, 776.)
Doubts as to whether the evidence is sufficient to warrant instruction
should be resolved in the defendant’s favor.
(Flannel, at p. 684, fn.
12.) The standard of review for alleged
instructional error is de novo. (
1048, 1089, disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
A defendant has only a “modest
burden†in establishing the right to instruction on a defense under the
MMPA. (People v. Jackson (2012) 210 Cal.App.4th 525, 533.) In Colvin,
we noted that after the voters passed Proposition 215, the Compassionate Use
Act of 1996, our Legislature enacted the MMPA to implement a plan for the safe
and affordable distribution of marijuana to patients in need of it. (People
v. Colvin, supra, 203 Cal.App.4th
at pp. 1034-1035.) To that end, section
11362.775 of the MMPA provides a defense to certain marijuana-related charges. It states:
“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[,]†among others, sections 11359 (possession for sale) and
11360 (transportation of marijuana).
Section 11362.775 thus permits a defense to marijuana-related charges if
the defendant is, first, a qualified patient, person with a valid
identification card or a designated primary caregiver; and, second, the
defendant associates with similarly situated people to collectively or
cooperatively cultivate marijuana. (
The defendant in Colvin,
like Fernandez here, was stopped in his car with about a pound of marijuana,
and Colvin was charged with, among
other things, sale or transportation of marijuana. Colvin, a qualified patient under the MMPA,
co-owned and operated two marijuana dispensaries, and he was delivering the
marijuana from one establishment to the other.
(People v. Colvin, supra, 203
Cal.App.4th at pp. 1032-1034.)
Although the trial court found that Colvin was a qualified patient
operating a legitimate dispensary, the court disallowed a defense under section
11362.775, because Colvin’s “ ‘transportation [of marijuana] was outside
of what the law permits.’ †(
We reversed the judgment and found that the defense
applied to Colvin, as there was no evidence Colvin’s transportation of
marijuana was for anything other than his collectives. (People
v. Colvin, supra, 203 Cal.App.4th at p. 1037; but see People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512,
1523 [“Section 11362.775 protects group activity ‘to cultivate marijuana for
medicinal purposes.’ It does not cover
dispensing or selling marijuanaâ€].) We
also rejected the Attorney General’s argument that a section 11362.775 defense
does not apply to a “ ‘large-scale . . . marijuana network’ †with
thousands of members, not all of whom engage in “ ‘some united action or
participation’ †in the collective.
(Colvin, at p. 1037; see also id.
at p. 1039.) Although the Legislature
might have “envisioned small community or neighborhood marijuana gardens,â€
nothing on the face of section 11362.775 or its legislative history supported
the Attorney General’s amorphous proposed limitation on the defense. (Colvin,
Cal.App.4th 747, 785.)
The People
distinguish this case from Colvin based
on evidence Fernandez sold marijuana to collectives to which he did not
belong. That evidence included Sergeant
Wolak’s and Detective Wagner’s testimony that Fernandez said he made $250 an
hour selling marijuana to collectives; that Fernandez had samples of marijuana
in vials; and that he was stopped near collectives having no affiliation with
Whittier Hope. Fernandez, however,
denied telling the officers he sold marijuana to collectives. Fernandez also explained why he had marijuana
in his car: it was at a stage in the
cultivation process that required constant monitoring. Ortiz, Whittier Hope’s director, testified
that the marijuana in Fernandez’s car was intended for the collective, which
had advanced $2,000 to Fernandez for it.
Thus, there was conflicting evidence concerning whether the marijuana in
Fernandez’s car was for Whittier Hope and whether Fernandez sold marijuana to
collectives other than Whittier Hope.
The People also argue that there
was an insufficient showing that Fernandez was not making a profit from selling
marijuana. (See, e.g.,
Cal.App.4th at p. 529 [the defense under the MMPA requires the defendant to
establish that the collective or cooperative members are not engaged in a
profit-making enterprise].) Ortiz,
Whittier Hope’s director, however, testified that the collective was a
nonprofit that reimbursed its members, including Fernandez, for marijuana they
donated. He briefly discussed the
reimbursement method and the value of different strains of marijuana, such as
King Louis the 13th. Therefore, there
was evidence that the collective was a nonprofit enterprise. In any event, the trial court refused to
admit all evidence about the collective, and evidence relevant to the defense
and to this issue specifically may have been excluded. (See Jackson,
at pp. 530, 538-539 [size of collective and volume of purchases may be
relevant to whether the collective is a not-for-profit organization].)
The People discount the defense
evidence as self-serving. That, however,
is the point of evidence offered in defense to a charge. The defense evidence contradicted the
officers’ testimony and tended to show that Fernandez’s transportation of
marijuana was related to his membership in the collective. In determining the sufficiency of the
evidence to support the defense, the trial court was not permitted to decide
that the officers were more credible.
Although the trial court reasonably believed that the vials containing
samples of marijuana showed that Fernandez was selling it to collectives other
than Whittier Hope, a jury could have believed that the samples were for
Whittier Hope. Similarly, a jury could
have found Fernandez more credible than the officers. When deciding whether there is sufficient
evidence to instruct a jury on a defense, such credibility decisions are for
the trier of fact. (People v. Salas, supra, 37 Cal.4th at p. 983.)
Based on the evidence that was
admitted, the trial court erred by failing to instruct the jury on a defense
under section 11362.775. We have no
comment on whether Fernandez will or should ultimately succeed on the defense. We merely hold that there was sufficient evidence
of the defense such that Fernandez was entitled to raise it before the jury.
The judgment is reversed and remanded for proceedings
consistent with the views we have expressed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
Health and Safety Code.
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