P. v. Jaques CA4/2 ( 2013 )

Filed 6/24/13 P. v. Jaques CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E053356
v. (Super.Ct.No. SWF028160)
JAMES DALE JACQUES, Jr., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas Kelly, Judge.
(Retired judge from Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Collette C.
Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted defendant, James Jacques, Jr., of transporting more than 28.5
grams of marijuana (Health & Saf. Code, § 1360, subd. (a)1 and possessing marijuana for
sale (§ 11359). He was granted probation and appeals, claiming that the defense of being
part of a medical marijuana collective is unconstitutionally vague, evidence was
improperly admitted, the evidence was insufficient and the jury was misinstructed. We
reject his contentions and affirm.
FACTS
On May 1, 2009, a police officer stopped the car defendant was driving for a
vehicle violation. Defendant said he had no identification. Defendant said his nephew
had rented the car. Defendant confirmed that he was on probation out of another county
for a drug offense. Defendant said he was a drug registrant at an address in Temecula,
but he was not living at that address at the time. He had fourteen $5.00 bills, one $10.00
bill and a cell phone on him. He said there was marijuana in the glove box, but it
belonged to his passenger, and the passenger confirmed this.2 Defendant said he had a
medical marijuana card that allowed him to use and possess marijuana, but he did not
have the card with him and he never showed one to the officer. He never provided proof
1 All further statutory references are to the Health and Safety Code unless
otherwise indicated.
2 The passenger said he had a medical marijuana card and he showed the officer
paperwork from a doctor‟s office, but he was eventually cited for possessing this
marijuana because the officer could not verify that the passenger possessed the marijuana
for a medical purpose. The passenger also admitted owning a marijuana pipe, which the
officer found on the passenger side floor of the car.
2
that he had such a card. In the trunk of the car, which emitted the odor of marijuana, the
officer found, inter alia, a clothing bag, which defendant said belonged to his nephew.
Defendant said there were a couple of pounds of marijuana in the bag. The officer saw
what appeared to him to be marijuana in five plastic baggies, each weighing
approximately one pound, in the bag.3 Defendant said his nephew had a medical
marijuana recommendation and was a primary caregiver and dispensed medical
marijuana, which was allowed by the authorization the nephew had. He said the
marijuana in the vehicle was for dispensing to medical clients and his nephew dispensed
marijuana. There was one $100 bill and eighty $20 bills in the zipped side pouch of the
bag. Defendant said the money was not his—that it must belong to his nephew. In
another bag in the trunk was a scale.4 Defendant also said that his medical marijuana
card allowed him to be a primary caregiver,5 so the amount of the marijuana “wasn‟t a
concern” and it was “legal for him to possess.” However, defendant never said the
marijuana was his, but that it belonged to his nephew. He also never mentioned a
collective.
3 This officer‟s partner testified that the marijuana weighed a total of 6 pounds, 10
ounces.
4 The People appear to imply, in their statement of facts, that this bag was not
found in the trunk of the car. However, our reading, defendant‟s and the prosecutor‟s is
that it was.
5 As already stated, defendant never showed a card to the officer.
3
After defendant was arrested, he directed the officer and the officer‟s partner to a
home in Lake Elsinore where he claimed he was currently living. Defendant did not have
the key to the home, but claimed he went in and out through a rear sliding glass door.
They entered through the unlocked rear sliding glass door and defendant took the officers
to an upstairs bedroom which appeared to be a child‟s room. No clothing or possessions
inside the room linked defendant to it.
Defendant‟s cell phone contained several text messages, one of which appeared to
be from a person who was asking defendant about the purchase of marijuana. The sender
identified herself as “„ . . . Sarah, Nate dog and Sarah‟s friend.” She asked, “Just
wondering about some mary? You get texts?‟” Another text, which had been sent by a
man who eventually testified for defendant at his trial, said, “„Hey, it‟s Matt. Can I get a
quarter instead of the 40[?]‟” A text from a third number said, in part, “„I‟m getting mad
complaints about the last three drop offs.‟” A text from another person who eventually
testified for the defense at this trial said, “„My buddy with his card is coming over. Can I
get an extra two O‟s . . . ?[‟]”6 Two other texts from the same person said, “„Could you
deliver a O tonight. I‟d be willing to meet you close to you. My friend is flaking again
but tomorrow is a big day.‟” Another text from the same person asked, “„How much for
QP, BTW?‟”7 Yet another said, “„I‟m going to grab a dr[i]nk from inside while you
weigh that out.‟” A text from another number asked, “„Is it cool to give JP the cash I owe
6 The officer opined that this meant two ounces and the text sender concurred.
7The sender of this text testified at trial that he was asking defendant how much
defendant would charge for a quarter pound of marijuana.
4
you and just grab two more[?]‟” Another text from that same number said, “„Are you
busy? Your friends are getting bored. Can I get two this time for 550?‟” The officer
opined that all of these texts referred to the sale of marijuana.
Defendant‟s nephew testified that defendant stayed at the nephew‟s Lake Elsinore
home about two nights a week. The nephew said he was a medical marijuana patient and
had a recommendation from a doctor. He also said he had a caregiver card. However, he
denied being in any group with defendant regarding growing marijuana and he denied
growing marijuana with defendant. He admitted that defendant had given him marijuana
from time to time. He said that defendant apologized to him for saying that the nephew
owned the marijuana that was found in the car. The nephew denied any knowledge of the
marijuana in the car and he denied that the marijuana or the money that was there was
his. He said he had rented the car for defendant‟s use because defendant did not have a
credit card.
Defendant‟s passenger testified that defendant had a marijuana delivery service
and defendant delivered marijuana to the passenger. The marijuana in the glove box was
the passenger‟s, which he was authorized by a doctor to have. He denied knowledge of
or ownership of the marijuana that was found in the trunk. He testified that defendant
told him that it was defendant‟s. He said he would buy one-quarter of an ounce of
marijuana from defendant each month for $140,8 he showed defendant his medical
marijuana card and defendant had him fill out paperwork before defendant gave him
8 He testified that this was about what other dispensaries charged him.
5
marijuana. Also, before he got marijuana from defendant, the passenger and defendant
had a discussion about the obligations of medical marijuana patients—that the marijuana
could not be used for anything other than medical purposes. However, there was no
discussion that the recipient of the marijuana could not share it with someone who was
not a medical marijuana patient, although the passenger had been aware of this fact since
2006. At one point, defendant had given him some marijuana as a sample and did not
charge him for it. He thought defendant had given him paperwork, but he was unable to
locate it. However, he claimed to have signed something he had not read. He thought he
had designated defendant as his primary caregiver, but he was not certain. However, the
extent of their relationship was that when the passenger needed marijuana, he would call
defendant and defendant would bring him marijuana, which the passenger would pay for.
To his knowledge, he was not part of a group that grew marijuana that included
defendant. He did not know where defendant obtained the marijuana he provided to him.
Defendant never told him to what use the money the passenger gave defendant for the
marijuana defendant supplied to him was put.
A female who had obtained marijuana from defendant in exchange for money
testified for the prosecution that while at her doctor‟s office, getting a marijuana
recommendation, she was given defendant‟s business card. She called defendant and he
told her that he would have to call her doctor‟s office, then call her back. Ten minutes
later, he called her back and asked her how much marijuana she wanted. In response to
her question, he said he had two kinds and she asked him to bring both so she could try
each. He said each cost $50 for an eighth of an ounce. At defendant‟s direction, they
6
met at a pancake house. Defendant had marijuana edibles he showed her. He told her he
was a primary caregiver, he took care of a lot of people, and he was starting a co-op.
Defendant asked for and was given a copy of her recommendation. However, she signed
no paperwork and saw none. He showed her a card, which bore a star, and he had
previously told her that a star on your card meant that you were a primary caregiver.
However, she did not designate him as her primary caregiver. He did not call the money
she gave him for the marijuana a donation. She denied being a member of a group.
Defendant told her that he supplied marijuana to dispensaries. When he handed her the
marijuana, it was in two sandwich baggies, which she pulled up to see the contents. He
slapped her hand and said, [“I]t ain‟t that legal.[”]
An expert testified for the prosecution that illegal co-ops or dispensaries sell
marijuana at a profit for about $20 or more a gram, which was about the price for
marijuana on the street. Legal marijuana can be grown for the patient‟s own use or in a
collective or cooperative. He said that people who operate legal collectives like to talk
about their organization and the members know each other. A collective is usually
comprised of a person who owns land or a garage and a certain number of members. All
members of the collective contribute labor and/or supplies or the money to purchase them
to grow the marijuana. Together they harvest and process the marijuana, then divide it up
amongst themselves. To legally be a member of a collective, one has to have a medical
marijuana recommendation. Collectives are not allowed to operate for profit, and the
Attorney General‟s Guidelines so provided. The only valid price for marijuana offered
by a legitimate collective is the actual cost to produce it and get in the hands of the
7
patient. It costs between $300 and $800 to grow one pound of marijuana indoors and less
to grow it outdoors, and that would include the cost of labor, which should not be a factor
in a collective, since the members supply the labor. In his opinion, charging $250 per
ounce is more than the cost of operating and overhead. Marijuana is the most profitable
drug to sell. Based on the testimony of three witnesses who testified for the defense,
whose testimony will be described infra, he opined that what defendant was doing was
not a legal collective. This was because defendant was selling the marijuana at a profit,
he did not have an on-going relationship with these people and met them in parking lots
and sold quantities of one-eighth of an ounce at a time and there was no indication that
these people were in any group collective setting or were working together and they did
not know each other. He also opined that one person could not constitute a collective and
it would make no sense for a collective to offer quantity discounts. Based on what the
defense witnesses said they gave defendant in exchange for the marijuana he supplied
them, the marijuana found in the trunk had a value of between $25,920 and $53,760. He
opined that defendant‟s distribution of marijuana was for profit in part because what he
was charging in the text messages exceeded the cost of growing marijuana. He explained
that the text messages found on defendant‟s phone also suggested that he was not part of
a legal collective in that the prices quoted in them were too high. Additionally, people
operating in a collective have a ongoing relationship with each other and contribute
towards and divide up the yield of the crop and the text senders were not doing this—they
were calling defendant and telling him they needed a certain amount of marijuana. The
fact that the defense witnesses testified that each paid a different amount from the other
8
for marijuana supplied by defendant also suggested that the asserted collective was not
legal. He allowed that members of a collective may legally contribute money to the
collective, but that money had to be used to buy things necessary for the growing or
distribution of the marijuana to members of the collective. According to the Attorney
General‟s Guidelines, compensation for overhead costs had to be reasonable. Only a
primary caregiver can be compensated for his or her efforts and labor in growing the
marijuana. Collective members can agree that each member will receive a different
amount of marijuana than the other members receive. Based on his knowledge and
experience, people who wanted to join a collective first had to have their status verified
by the collective, they had to agree not to distribute marijuana to non-members and to
agree to use it only for medical purposes and their records had to be accessible to the
collective. Based on a hypothetical containing the facts of this case, he opined that
defendant possessed the marijuana for sale. He based this on the facts that there was over
six pounds of marijuana in the trunk and scales “to meet whatever the need is when you
get the calls[,]” the presence of the $20 bills, which are the most common denominator
when dealing in street level narcotics, the text messages asking about getting ounces and
how much would be charged for a quarter pound and defendant‟s prior conviction for
possessing cocaine for sale. Other aspects of his testimony are described elsewhere in
this opinion.
Evidence concerning defendant‟s prior conviction of a drug offense is described
elsewhere in this opinion.
9
A female medical marijuana patient testified for the defense that in 2008, she
joined a group of similar patients, of which defendant was also a member. However, she
admitted that she knew none of the other members of the group and did not know how
many people were in the group. She and defendant verbally agreed that he would supply
her with marijuana. She showed defendant her medical recommendation. Before she
joined the group, she and defendant went over the rules, which were that the marijuana
she received was for her use only, she could not share it with others, she could not sell it
and she was to treat it as medicine. She termed the money she gave defendant for the
marijuana he gave her a donation and she believed she was contributing to the group by
paying this money, although she admitted telling representatives of both the prosecutor‟s
office and the defense team that she bought marijuana from defendant and she did not
mention the word “donation.” She asserted that defendant‟s organization was a non-
profit, but she did not explain how she knew this.9 She always paid defendant $270 per
ounce and she obtained about one ounce per week. She would call defendant, he would
bring her marijuana and she would give him money. She did not know where defendant
grew the marijuana he supplied to her, but she “knew” he was growing it himself,
although she did not know how, and the money she gave him was to cover the cost of
this. However, defendant never discussed with her crop yields or costs. She asserted that
the marijuana found in the trunk was to go to her and other members of the group, but,
again, she did not explain how she knew this. She asserted that defendant was her
9 Another defense witness testified that defendant had told him that the group was
nonprofit.
10
primary caregiver, however, she also said that he only provided her with medical
marijuana and did nothing else for her. She added that she knew that a legal caregiver is
a person who takes the patient to the doctor, and defendant did not do that for her, so
defendant was “not her caregiver in the legal” sense.
A male medical marijuana user testified for the defense that he contacted
defendant when a friend told him that the friend was getting his marijuana from
defendant. He asserted that he joined a group of medical marijuana patients, but he
admitted that he did not know any of the other members of the group. He also admitted
that he had no idea what role anyone in the group played other than defendant supplying
marijuana. On one occasion, he saw defendant doing paperwork, but he otherwise saw
no logging being done by defendant. He said that his first meeting with defendant
occurred when he and defendant met a place away from the witness‟s home and he got
into defendant‟s car “because [the witness] lived in a gated community.” He showed
defendant his recommendation and gave him a copy of it. He asserted that this
information was verified but he did not explain how he knew this. Defendant described
the “rules,” which were that marijuana could not be given to anyone who did not have a
card or to anyone outside the group (but anyone could join the group) and the marijuana
was to be treated as medicine. He asserted that he gave defendant “donations” for the
marijuana, which he considered to be his contribution to the group. Defendant did not
tell him that defendant, himself, grew the marijuana and the witness did not know
defendant‟s source for it. He allowed that defendant may have gotten it from someone
else and not grown it himself. He used two ounces or less a month and gave defendant
11
$10 per gram, or about $275 per ounce. He said that in response to his text message
about how much a quarter pound would cost, defendant offered a discount for larger
quantities, but this witness never took advantage of it. The witness did nothing to help
cultivate the marijuana. He designated defendant as his primary caretaker, but defendant
never provided him with anything other than marijuana. This witness admitted that after
he joined the group, he sent defendant the text message that said, “My buddy with his
card is coming over. Can I get an extra two O[unces]s?” He admitted that at the time,
his buddy was not a member of the group. He also admitted sending the text message in
which he asked defendant to deliver an ounce that night, that he would be willing to meet
defendant close to where defendant was and that his friend was “flaking again” but that
tomorrow was a big day, which meant that tomorrow was pay day. This witness was
never told how much marijuana the group had or about its finances. He said that none of
the marijuana found in the trunk was his, but he “supposed” that, as a member of the
group, he was entitled to “a little bit” of it. He said that defendant had given him a gram
of marijuana and an edible as a gift, but other than that, he always gave a “donation” for
every ounce of marijuana he obtained from defendant.
A second male medical marijuana patient also testified for the defense that he
discovered defendant on a web site. He asserted that he joined a group of like patients, of
which defendant was also a member, but he never met any of the other members.
Defendant did not tell him whether defendant, himself, grew the marijuana. He admitted
that he did not know if defendant grew the marijuana himself—in fact, he believed that
defendant got it from medically licensed growers and caregivers. This witness knew
12
nothing about the yields, prices or finances of the group. At their first meeting, this
witness showed defendant his medical marijuana card from Riverside County, his
doctor‟s recommendation and he gave defendant a copy of the card. Defendant showed
his defendant‟s medical marijuana card from Riverside County. He asserted that
defendant “t[oo]k some steps to verify” that he was a medical marijuana patient, but he
did not explain how he knew this. Defendant explained the rules—that a member cannot
redistribute marijuana to others or share with non-medical marijuana patients or drive
under the influence. The marijuana was to be treated like medicine. This witness offered
a certain amount of money as a donation “to the group” and defendant told him the
amount of marijuana he would give him in exchange for this. He admitted that after
joining the group, he sent the text in which he asked for a “quarter” instead of a “40.” He
explained that he meant that he usually donated $40, but on this day he could donate
$100 to get a quarter of an ounce. He got two and one-half grams for a $40 donation, but
if he was really in pain, defendant would give him more. He also received a discount for
quantities. He never designated defendant as his primary caretaker and he had no
interaction with defendant other than defendant giving him marijuana in exchange for
money. In a particularly poignant moment during his testimony, he was asked how the
facts that he called defendant, defendant brought him marijuana, he gave defendant cash
and defendant gave him marijuana were “different than a purchase and a sale[.]” He
responded, “I don‟t know.”
13
ISSUES AND DISCUSSION
1. Constitutionality of the Collective Defense
“In 1996, voters passed Proposition 215, the Compassionate Use Act of 1996
[citation]. One purpose of the CUA was 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 illnesses for
which marijuana provides relief. [Citations.] A second purpose was to ensure that
patients and their primary caregivers who obtain and use medical marijuana are not
subject to criminal prosecution or sanction. [Citation.] The CUA therefore provided that
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 patient‟s primary caregiver,
who possesses or cultivates marijuana for the personal medical purposes of the patient‟
upon a doctor‟s recommendation. [Citation.] The CUA thus provided a limited
immunity from prosecution, including a defense at trial. [Citation.] [¶] In response to
the CUA‟s encouragement „to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients‟ in need of it [citation], our Legislature enacted
the M[edical] M[arijuana] P[rogram] A[ct] [citation]. Through the MMPA, the
Legislature sought to „(1) [c]larify the scope of the application of the act and facilitate the
prompt identification of qualified patients and their designated primary caregivers in
order to avoid unnecessary arrest and prosecution of these individuals and provide needed
guidance to law enforcement officers. [¶] (2) Promote uniform and consistent application
14
of the act among the counties within the state. [¶] (3) Enhance the access of patients and
caregivers to medical marijuana through collective, cooperative cultivation projects.‟
[Citation.] To these ends, section 11362.775 of the MMPA provides, „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 Sections 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.‟ [Citation.]”
(People v. Colvin (2012) 203 Cal.App.4th 1029, 1035 (Colvin).)
The Colvin court went on to say, “The Legislature also enacted section 11362.765,
which provides: „(a) Subject to the requirements of this article, the individuals specified
in subdivision (b) shall not be subject, on that sole basis, to criminal liability under
Sections 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in
this section shall authorize the individual to smoke or otherwise consume marijuana
unless otherwise authorized by this article, nor shall anything in this section authorize
any individual or group to cultivate or distribute marijuana for profit. [¶] „(b)
Subdivision (a) shall apply to all of the following: [¶] „(1) A qualified patient or a
person with an identification card who transports or processes marijuana for his or her
own personal medical use. [¶] „(2) A designated primary caregiver who transports,
processes, administers, delivers, or gives away marijuana for medical purposes . . . , only
to the qualified patient of the primary caregiver, or to the person with an identification
card who has designated the individual as a primary caregiver. [¶] „(3) Any individual
15
who provides assistance to a qualified patient or a person with an identification card, or
his or her designated primary caregiver, in administering medical marijuana to the
qualified patient or person or acquiring the skills necessary to cultivate or administer
marijuana for medical purposes to the qualified patient or person. [¶] „(c) A primary
caregiver who receives compensation for actual expenses, including reasonable
compensation incurred for services provided to an eligible qualified patient or person
with an identification card to enable that person to use marijuana under this article, or for
payment for out-of-pocket expenses incurred in providing those services, or both, shall
not, on the sole basis of that fact, be subject to prosecution or punishment under Section
11359 or 11360.” (Colvin, supra, 203 Cal.App.4th at p, 1035, fn. 7, italics added.)
“This [last] section thus allows a primary caregiver to receive compensation for
actual expenses and reasonable compensation for services rendered to an eligible
qualified patient . . . .” (People v. Urziceanu (2005) 132 Cal.App.4th 747, 784, 785.)
Section 11362.7, subdivision (d) provides, in pertinent part, “„Primary caregiver‟
means the individual, designated by a qualified patient or by a person with an
identification card, who has consistently assumed responsibility for the housing, health,
or safety of that patient or person . . . .” (§ 11362.7, subd. (d), italics added.)
Subdivision (f) provides, “„Qualified patient means a person who is entitled to the
protections of Section 11362.5, but who does not have an identification card issued
pursuant to this article.” Subdivision (g) provides, “„Identification card‟ means a
document issued by the State Department of Health Services that . . . identifies a person
16
authorized to engage in the medical use of marijuana and the person‟s designated primary
caregiver, if any.”
A provision of the Medical Marijuana Program Act (MMPA) “directs the Attorney
General to develop and adopt appropriate guidelines to ensure the security and
nondiversion of marijuana grown for medical use by patients qualified under the CUA.”
(Colvin, supra, 203 Cal.App.4th at p. 1040, fn. 11.) “Those guidelines are entitled to
considerable weight but do not bind us. [Citation.]” (Ibid.)10
Defendant contends that the collective defense is unconstitutionally vague.
However, there is a strong presumption that legislative enactments must be upheld
against such a challenge unless their unconstitutionality appears clearly, positively and
unmistakenly. (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.) If any reasonable or
practical construction can be given to its language, it is not void for vagueness. (Ibid.)
Specifically, defendant contends that the defense to possession of marijuana for
sale and to transportation of marijuana available to a collective is vague because section
11362.775 does not define a collective. However, “[a]ll that is required is that the statute
be reasonably certain so that persons of common intelligence need not guess at its
meaning. [Citation.] „The requirement of reasonable certainty does not preclude the use
10 Those guidelines may be found at
http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf.
We grant defendant‟s motion to take judicial notice of those guidelines.
Some provisions of those guidelines were incorporated into the jury instructions
concerning the defense that defendant was transporting and possessing marijuana for a
collective. The prosecution‟s expert testified, during cross-examination by defense
counsel, that these guidelines were “authority.”
17
of ordinary terms to express ideas which find adequate interpretation in common usage
and understanding.‟ [Citation.]” (People v. Silver (1991) 230 Cal.App.3d 389, 393,
394.) Section 11362.775 provides a defense for patients, card holders and their primary
caregivers who associate in order to collectively or cooperatively cultivate marijuana for
medical purposes. The fact that the word “collective” is used colloquially to refer to this
defense does not necessitate it being defined. What action is required is clear in the
statute itself, i.e., the members must come together in order to cultivate marijuana.11
Defendant also criticizes the MMPA for failing to define “profit” which neither an
individual nor a group is allowed to make in the cultivation or distribution of medical
marijuana. (§ 11362.765, subd. (b).) First, any reasonable person knows what profit
means—it is whatever money is made from the sale of goods or services that is above and
beyond the actual costs of those goods or services. Additionally, as stated above, the act
allows a primary caregiver to receive compensation for “actual expenses, including
reasonable compensation incurred for services provided . . . to enable [the patient or card
holder] to use marijuana” and for “out-of-pocket expenses in providing those
services . . . .” (§ 11362.765, subd. (c).) If any clarification of the notion of “profit” is
required, section 11362.765, subdivision (c), as reiterated above, provides it.
11 Defendant adds that the guidelines promulgated by the Attorney General are
mere guidelines, lacking the force of rules or regulations and that many are termed as
suggestions rather than commands. (But see text prior to fn. 10, ante, p. 18.) For the
sake of this argument, only, we will accept defendant‟s premise and ignore the
guidelines.
18
Next, defendant asserts that because he “complied with what appears to be the
overarching concern of the MMPA by not providing marijuana to non-patients, the law is
unconstitutionally vague in light of his personal situation.” However, defendant‟s
premise is incorrect. He does not cite any authority that sets forth what the “overarching
concern” of the MMPA is.12 As the jury was instructed, a collective “cultivate[s]
12 Appellate counsel provides two pages of statements as to the problems caused
by the Compassionate Use Act (CUA) which the MMPA was designed to address and the
legislature‟s intent in enacting it; however, he provides no citation to any authority for
these statements. People v. Hochanadel (2009) 176 Cal.App.4th 997, 1007, 1008, states,
“The express intent of the Legislature was to: “(1) Clarify the scope of the application of
the [CUA] and facilitate the prompt identification of qualified patients and their
designated primary caregivers in order to avoid unnecessary arrest and prosecution of
these individuals and provide needed guidance to law enforcement officers. [¶] (2)
Promote uniform and consistent application of the [CUA] among the counties within the
state. [¶] (3) Enhance the access of patients and caregivers to medical marijuana through
collective, cooperative cultivation projects. [¶] (c) It is also the intent of the Legislature
to address additional issues that were not included within the [CUA], and that must be
resolved in order to promote the fair and orderly implementation of the [CUA].”
[Citation.] The legislative history further states, “Nothing in [the MMPA] shall amend or
change Proposition 215, nor prevent patients from providing a defense under Proposition
215 . . . . The limits set forth in [the MMPA] only serve to provide immunity from arrest
for patients taking part in the voluntary ID card program, they do not change Section
11362.5 (Proposition 215) . . . .” [Citation.] [¶] Of relevance to this appeal, the MMPA
added section 11362.775, which provides: „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 Section 11357
[possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale],
11360 [transportation], 11366 [maintaining a place for the sale, giving away or use of
marijuana], 11366.5 [making available premises for the manufacture, storage or
distribution of controlled substances], or 11570 [abatement of nuisance created by
premises used for manufacture, storage or distribution of controlled substance].‟”
(Hochanadel, at pp. 1007-1008.) We detect nothing in this that creates an “overarching
concern” within which defendant‟s activities fit.
19
marijuana solely for the medical benefit of the members of the collective” and
“[c]ontributing members of a collective may only distribute marijuana to other
contributing members of the collective.” Both of these requirements are reasonable
inferences from the express provisions of the MMPA.13 Defendant did not challenge
them below. The evidence, however, shows that defendant sold to persons who were not
members of the collective the defense alleged existed. Therefore, defendant does not
persuade us that the fact that he provided some marijuana to those with cards or
recommendations means that the MMPA is vague as applied to him. Moreover, there
was evidence, i.e., the texts, that he was in the business of supplying marijuana to those
for whom there was no evidence that they had either a card or a recommendation.
Finally, as the People correctly point out, this particular constitutional challenge, which
requires an assessment of the facts, is forfeited because it was not raised below. (In re
Sheena K. (2007) 40 Cal.4th 875, 886, 887.)
13 The MMPA provides limited immunity, as is pertinent here, 1) to a qualified
patient or card holder who transports or processes marijuana for his or her own personal
medical use and, 2) to a designated primary caregiver who transports, processes,
administers, delivers or gives away marijuana to that caregiver‟s qualified patient or card
holder, the marijuana is for a medical purpose and the amount does not exceed that
provided in section 11362.77, subdivision (a). (MMPA, § 11362.765, subd. (b)(2).)
Only qualified patients, cardholders and designated primary caregivers of patients and
cardholders can form and maintain a collective in order to receive limited immunity
under section 11362.775. Therefore, to claim the collective defense as to any recipient of
the collective‟s medical marijuana, a designated primary caregiver can supply it only to
members of the collective for whom he or she is the designated primary caregiver.
20
2. Admission of Evidence
a. Prior Acts
Before trial began, the People moved, pursuant to Evidence Code section 1101,
subdivision (b),14 to be permitted to introduce into evidence that in March 2007,
defendant was pulled over by a police officer for an equipment violation and when asked
if there was anything in the car he was driving, he said not that he knew of. He claimed
the car belonged to his daughter. After defendant was arrested for driving on a suspended
license and an outstanding warrant, police found a baggie containing four grams of
marijuana, another bag containing 27 grams of cocaine and a digital scale. Defendant
admitted that the marijuana was his, but denied knowledge of the cocaine, although he
said that his fingerprints would probably be inside the box that contained the bag of
cocaine. He said the box did not belong to his daughter. Defendant then said that he had
found the box in a restaurant parking lot, and variously described where it had been
situated. He said he saw something black sticking out of the box, and, hoping it was
money, pulled it out. However, it was the scale. For reasons he claimed not to know, he
put the scale where it was found in the car by police and the box on the passenger
floorboard, intending to open the later and look inside when he got home. Then, he
changed his story, saying that his fingerprints might be inside the box and on the bag
containing the cocaine because he glanced inside the box. However, he denied selling
14 That subdivision provides, in pertinent part, “Nothing in this section prohibits
the admission of evidence that a person committed a crime . . . or other act when relevant
to prove some fact such as . . . intent, . . . plan, . . . [or] absence of mistake or
accident . . . other than his or her disposition to commit such an act.”
21
cocaine. First, defendant said he never used any illegal drugs other than marijuana, then
changed his story, admitted that he had used cocaine in the 1970‟s. As a result of this
incident, defendant pled guilty to possessing cocaine for sale.
The People asserted that the foregoing was relevant to show that during the instant
offenses, defendant intended to sell marijuana, if defendant planned to claim at trial that
he did not intend to sell the marijuana or that it belonged to someone else. The People
also asserted that this evidence was relevant to show a common plan or scheme, of which
the instant offenses were part.15 The similarities the People noted between the 2007
incident and the instant one were that in each, defendant, 1) had a substantial amount of
contraband and more than for personal use, 2) was in a car he claimed he borrowed from
a family member, 3) was in possession of a scale, 4) initially denied that the contraband
was his, and 5) possessed marijuana. The People also asserted that the probative value of
this evidence outweighed its prejudicial impact.
As is relevant here, defendant asserted in his written motion in limine only that the
prejudicial impact of this evidence outweighed its probative value. At the hearing on the
motion, he reiterated this position.
The trial court ruled that the evidence was admissible, without elaboration. The
jury was instructed that evidence of defendant‟s conviction of possessing cocaine for sale
could be considered only for the purposes of determining defendant‟s intent to sell, his
15 The People added another theory of admissibility during the hearing on the
motion, i.e., that the prior proved defendant‟s knowledge in this case of the presence of
the marijuana and its nature.
22
knowledge of the nature of the marijuana16 and whether he had a plan or scheme to
commit the instant offenses. Defendant contends that this ruling constituted an abuse of
discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) However, he makes this
argument on bases he did not advance below, i.e., that the prior is irrelevant because in
the instant case, defendant conceded that he knew he possessed marijuana and that he
intended to exchange it for something of value and he intended to transport it to facilitate
its use. Therefore, defendant abandoned these bases. (Evid. Code, § 353.)
Moreover, his position lacks merit. While the defense attempted to mount a
collective defense, the jury was free to reject it. Once they rejected it, they were left with
determining whether the elements of each crime had been established by the People
beyond a reasonable doubt. This included his intent to sell the marijuana. Absent a
stipulation by him that he intended to sell the marijuana, which he never entered into, the
People still bore the burden of proof as to this element. Unfortunately for defendant, in
mounting a collective defense, he contradicted the statements he made to the officer who
stopped him.17 However, those statements were admissible, they were admitted and the
People had the right to rebut his denial of intending to sell the marijuana. Defendant does
not assert, nor can he, that the evidence at issue was irrelevant to this element. We agree
with defendant that the evidence was prejudicial. However, that did not mean that the
trial court abused its discretion in admitting it.
16 See footnote 15, ante, page 23.
17 No doubt, this was probably one of the primary reasons the jury rejected it.
23
b. Prosecution Expert’s Testimony
The prosecution‟s expert testified that illegal dispensaries or cooperatives sell
marijuana for about $20 a gram, which is roughly the street price. He said that the most
popular legal source of medical marijuana for patients is a collective. He was then asked
whether, over the years, he has seen the types of medical marijuana defenses change. He
said he had. There was no objection by defense counsel. He was then asked what was
originally the predominant medical marijuana defense for people who were actually
distributing marijuana for profit. Defense counsel objected on the basis of relevancy and
was overruled. The expert went on to respond that for-profit distributors claimed to be
caregivers, but that was no longer used because guidance was provided about what it took
to be a caregiver and they did not meet the criteria. He testified that after the caregiver
defense went by the wayside, the cooperative defense began to be used; however, it was
no longer popular because a legal definition of a cooperative had arisen, and “people
typically who are dispensing marijuana” did not fit within that definition. He then
testified that the defense that arose after cooperative was the collective defense.18
Defendant did not object to any of this testimony.
We agree with defendant that the trial court abused its discretion in overruling his
objection to the question about the original defense used by people who were distributing
18 In the interest of clarity, according to the guidelines of the Attorney General, a
cooperative “„must file articles of incorporation with the state . . . must follow strict rules
on organization, articles, elections, and distribution of earnings, and must report
individual transactions from individual members each year.‟” (Qualified Patients Assn.
v. City of Anaheim (2010) 187 Cal.App.4th 734, 747.)
24
marijuana for profit. It was irrelevant that others had tried to claim this defense in the
past. However, defendant attempted, somewhat, to claim it for himself, and definitely
claimed it on behalf of his nephew, when he was stopped by the officer. Given this and
the overwhelming evidence against defendant, we cannot agree that there is a reasonable
probability that but for the admission of this evidence, defendant would have enjoyed a
more favorable outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.)
3. Sufficiency of the Evidence
a. Marijuana
Defendant contends there was insufficient evidence that the substance found in the
trunk of the car defendant was driving on May 1, 2009 was marijuana. We disagree. As
defendant concedes, the officer who stopped defendant testified that the odor of
marijuana came from the trunk.19 Defendant now wishes to call the ability of this officer
to identify the odor of marijuana into question, based on his qualifications in the field of
“controlled substances,” rather than marijuana, specifically, and to assert, therefore, that
his opinion was insufficient to support this element of the offenses.20 In so doing,
defendant ignores the following evidence: he told this officer that “there was a couple of
pounds of marijuana in the bag” in the trunk. Defendant also told this officer that he had
19 This officer also opined that what was in the trunk was marijuana, an opinion
defendant ignores here. However, we assume that his criticism of the officer‟s opinion
that the trunk smelled of marijuana applied equally to the officer‟s opinion that what was
in the trunk was marijuana.
20 In doing so, however, defendant ignores the officer‟s testimony about his
training and experience “regarding identifying controlled substances such as marijuana.”
25
a “medicinal card that allowed him to be a primary caregiver so the amount of the
marijuana found wasn‟t a concern.” Despite this, defendant also told this officer “that
the marijuana [in the trunk] was not his marijuana” and “the marijuana . . . was for
medicinal purposes for [his nephew] dispensing it to medicinal clients . . . .”
Defendant‟s nephew testified that defendant told him that he had told the police that “the
marijuana in the trunk” belonged to the nephew. Defendant‟s passenger testified that
defendant told him that “ the marijuana in the back of the vehicle [was his].” The
passenger also testified that defendant told him that he was fighting this case because he
wanted to get “his marijuana” back.21 One of defendant‟s witnesses testified that she
was aware that there was “several pounds . . . [¶] [of] marijuana” in the trunk of the car.
Another defense witness testified that he had heard that defendant had been apprehended
with “a large sum . . . [¶] . . . [¶] [of] marijuana” in the trunk of the car. He testified
that defendant told him that he had been arrested and “everything that he had on him
including the marijuana was taken.” Finally, the officer‟s partner testified that what was
in the trunk was marijuana. Defendant advances no attack here on this witness‟s ability
to identify marijuana. All the foregoing more than sufficiently supports the jury‟s
implied finding that the substance found in the trunk was marijuana.
As background to this issue, before trial began, the parties discussed the People‟s
list of anticipated witnesses. Defense counsel asked that any witness who was going “to
talk about what the substance [in the trunk of the car] was” be excluded because “[he and
21 Only the marijuana in the trunk was the subject of this prosecution.
26
the prosecutor] tentatively reached an agreement that . . . [the] substance . . . was
marijuana . . . .” In response, the prosecutor said that he was removing two potential
witnesses from the list, one who was to testify about the chain of custody for the
marijuana and another who was to testify that she determined that the substances was, in
fact, marijuana. During trial, there were numerous referrals to the substance found in the
trunk as marijuana by the prosecutor, defense counsel and the witnesses on both sides.22
All these references were heard by the jury, without any objection by the defense. When
jury instructions were discussed, the prosecutor said he exorcised from the instructions on
both charged offenses the description of marijuana “because I believe we have a
stipulation that it‟s marijuana” to which defense counsel agreed. Therefore, while the
element that the substance defendant possessed or transported was marijuana was left in
the instructions for both offenses, missing from those instructions was the definition of
marijuana in the standard instructions.23 During argument to the jury, the prosecutor said
of this element, as to both crimes, “[In] the trunk . . . was marijuana. . . . [¶] . . . [¶] . . .
[That’s] not in dispute . . . .” Defense counsel did not object to this. In fact, during his
argument to the jury, defense counsel said when defendant was stopped and arrested “the
marijuana was found . . . . [¶] . . . [¶] . . . [The police said, „W]e got the marijuana, we
have cash, and we have text messages.[‟] [¶] . . . [¶] The only one that had the
possession of the marijuana was [defendant], who‟s clearly a member of the
22 As to the references by the witnesses, see the prior paragraph.
23See Judicial Council of California Criminal Jury Instructions, CALCRIM Nos.
2352 & 2361.
27
collective. . . . [¶] . . . [¶] [T]he [prosecution] brought you no evidence as to how this
marijuana got here. [¶] . . . [Y]ou . . . had evidence of people getting on the stand and
saying[,„T]hat marijuana in the trunk, yes, part of that was mine.[‟] [¶] A couple
[members of the collective] actually said, [„Y]es, the marijuana in that trunk was
partially mine.[‟]” As does happen in the confusion of trial, the parties, apparently,
neglected to reveal to the jury that they had entered a stipulation that the substance found
in the trunk was marijuana. However, by the time the jury was called upon to determine,
according to the instructions given, that what was in the trunk was, in fact, marijuana,
that finding had been made a foregone conclusion by the actions of both counsel, in
particular, defense counsel. Moreover, defendant‟s one and only defense, i.e., that he had
the marijuana for a legitimate collective, required him to concede that what was in the
trunk was marijuana.24 For defendant to here seriously press his contention that
insufficient evidence supports such a finding is not only unmeritorious, as we have
already concluded, but it invites this court to join in gamesmanship of which we will have
no part. A trial is a search for the truth, not a game of “gotcha.”
b. Sufficient Evidence that Defendant’s Activities Were Contrary to the Medical
Marijuana Laws
Defendant first asserts that there was no evidence that he sold marijuana to people
that did not have medical marijuana cards or recommendations. However, this is not a
24 Since defendant on appeal strenuously argues that he could not and did not
advance alternative defenses, we will not interfere with his tactical decision by claiming
he could also have relied on his statements that the marijuana belonged to his nephew as
an alternative defense.
28
sine qua non for his conviction of transporting and possessing the marijuana for sale if
other conditions were met. As the People correctly note, defendant relied on the defense
that he and those who obtained marijuana from him were part of a collective engaged in
the cultivation of marijuana and there was almost no evidence to support it.
Next, defendant attacks the testimony of the prosecution‟s expert. He asserts that
his testimony about how people in lawful collectives behave was entitled to no weight.
However, we do not reweigh the jury‟s implied finding as to the credibility of a witness‟s
testimony. (People v. Jones (1990) 51 Cal.3d. 294, 314.)
Next, defendant asserts that regardless of whether he was a member of a
collective, he was entitled to sell medical marijuana to medical marijuana patients. He
relies on section 11362.768, which became effective January 1, 2011. It applies to a
qualified patient or a person with identification cards who transports or processes
marijuana for his or her own personal use, a designated primary caregiver who transports,
processes, administers, delivers or gives away marijuana for medical purposes to the
qualified patient of the caregiver or to the person with an identification card who has
designated that person as his or her primary caregiver, any person who provides
assistance to a qualified patient or card holder or that person‟s primary caregiver in
administering medical marijuana to the patient or card holder or a primary caregiver who
receives compensation for actual expenses or for payment of out-of-pocket expenses in
providing services to a qualified patient or card holder. (§§ 11362.768, subd. (a);
11362.765, subd. (b).) It provides that “[n]o medical marijuana cooperative, collective,
dispensary, operator, establishment, or provider who possesses, cultivates, or distributes
29
medical marijuana pursuant to this article shall be located within a 600-foot radius of a
school.” (§ 11362.768, subd. (b).) It applies only to cooperatives, collectives,
dispensaries, operators, establishments or providers that are authorized by law to possess,
cultivate or distribute medical marijuana and that have a storefront or mobile retail outlet
which ordinarily requires a local business license. (§ 11362.768, subd. (e).) Based on the
statute‟s reference to “operators” or “establishments,” defendant asserts that “it does not
matter if [his] dominant role in the group meant that he was not operating as part of a
collective.” However, it is clear to us that section 11362.768‟s use of the words
“operator” and “establishment,” along with the entities named therein, was intended to
bring every type of operation that has a storefront or mobile retail outlet which ordinarily
requires a local business license within the ambit of its prohibition against operating such
a business near a school. We do not read it as contradicting the very clear provisions of
the MMPA that the only person who can distribute marijuana to a qualified patient or
card holder is their designated primary caregiver. Moreover, there was no evidence that
defendant had a storefront or mobile retail outlet which ordinarily requires a local
business license. Defendant‟s attack on that provision of the instruction on the collective
defense, i.e., “A single person who calls himself a collective but merely supplies patients
with marijuana has no defense under the law” is equally unfounded. It is based, in part,
on the holding in People v. Mentch (2008) 45 Cal.4th 274, 277, 278, that one whose
caregiving consists “principally of supplying marijuana and instructing on its use, and
30
who otherwise only sporadically took some patients to medical appointments” is not a
primary caregiver under the act.” Of course, we are bound by Mentch25 and we detect
nothing in section 11362.768 which even inferentially contradicts it. The other portion of
the provision, which is actually related to defendant‟s argument about section 11362.768,
is its reference to a “single person.” However, that is just common sense—a single
person cannot be considered a collective. Moreover, other provisions of the instruction
quite logically referred to the collective as a group of individuals.26
Finally, in advancing his argument, defendant ignores the context of this case—a
context, he, himself, made the tactical decision to create, i.e. that he was not guilty of
either offense because he was operating a legal collective. If he wanted to make the
argument that he was an operator under section 11362.768, and was not part of a
collective, he should have done so, but he did not. Even if he had, he would not have
been entitled to a defense unless he was a designated caregiver to everyone he supplied
with marijuana, and he was unable to do this at trial.
25 We are also bound by section 11362.7, subdivision (d)‟s provision that a
primary caregiver must “consistently assume . . . responsibility for the housing, health, or
safety” of the medical marijuana patient.
26 As part of his attack on the instructions given, defendant contends that he was
entitled to an instruction that “[w]hile a single person may not be a collective, a collective
need not spring up organically as the product of the simultaneous dream of a group of
marijuana patients. Nothing in the law prevents a collective from being organized by or
dominated by a small group of people or even a single person.” First, the instructions
given did not require the collective to be created in such a way or to not be so dominated,
and no reasonable juror would have imputed such requirements. Thus, we also reject
defendant‟s contention that his attorney was incompetent for failing to request such an
instruction.
31
Defendant next asserts that there was insufficient evidence that he was selling
marijuana for a profit. According to the prosecution‟s expert, he was, and the jury was
entitled to rely on his opinion. Defendant‟s arguments in this regard would have been
best left to the jury.
As part of his insufficiency of the evidence argument, defendant asserts that to the
extent that the Medical Marijuana Program Act (MMPA) may be interpreted to bar cash
sales of marijuana, bar the making of profit or bar the payment of reasonable wages for
services performed, it is an unconstitutional amendment of the CUA because, he asserts,
these things substantially restrict the ability of qualified patients to obtain medical
marijuana. First, defendant points to nothing that bars cash being given in exchange for
marijuana under the MMPA.27 Next, the MMPA clearly bars the making of profit by any
individual or collective (Qualified Patients Assn. v. City of Anaheim (2010) 187
Cal.App.4th 734, 746), but defendant fails to persuade us that this, in any way,
substantially restricts the ability of patients to obtain medical marijuana. Finally, as we
have already discussed, the MMPA allows caregivers to receive compensation for actual
expenses, including reasonable compensation for services provided, and payment for out-
of-pocket expenses. (§ 11362.765, subd. (c).)
4. Jury Instruction
The following instruction was given on defendant‟s collective defense,
27As Division One of this court pointed out in People v. Jackson (2012) 210
Cal.App.4th 525, “ . . . [T]he Attorney General‟s own guidelines . . . appear to
contemplate that . . . there will be an exchange of cash consideration.” (Id. at p. 537.)
32
“The Prosecution has the burden of proving to you beyond a reasonable doubt that
the defendant was not operating a collective. [¶] A Medical Marijuana Collective is a
group composed of medical marijuana patients or their primary caregivers who
collectively cultivate marijuana solely for the medical benefit of the members of the
collective. [¶] A Medical Marijuana Collective must be jointly owned and operated by
the members of the collective. [¶] A Medical Marijuana Collective cannot make any
profit from its marijuana cultivation. [¶] The cultivation of the Collective‟s marijuana
must be done by contributing members of the collective. [¶] A collective cannot obtain
its marijuana from anyone who is not a member of the collective. [¶] Contributing
members of a collective may only distribute marijuana to other contributing members of
the collective. [¶] A Medical Marijuana Collective should track and record the source of
the collective‟s marijuana. [¶] A Medical Marijuana Collective should document the
labor, resources and money contributed by each member. [¶] Reimbursement by
members of the collective can only be to cover actual costs and operating expenses. [¶]
A single person who calls himself a collective but merely supplies patients with
marijuana has no defense under the law.”
Defendant here asserts that he was “entitled to an instruction that as a medical
marijuana patient, he was entitled to make cash sales of medical marijuana to other
medical marijuana patients, but not to non-patients.” First, nothing in the instructions
given prohibited defendant from getting cash in exchange for marijuana and the
prosecutor never argued that defendant was guilty of either offense because he received
33
cash, which was prohibited by the law.28 Second, there was no evidence and defendant
did not advance the defense that he, himself, was a medical marijuana patient.29 Finally,
even if this instruction had been given, we are convinced beyond a reasonable doubt that
the absence of it did not contribute to the verdicts. (People v. Aranda (2012) 55 Cal.4th
342, 367.) As we have already stated, defendant voluntarily took upon himself the
defense of being part of a collective. This required enough evidence that he was a
designated primary caregiver to the people to whom he gave marijuana and that he and
they were part of a collective that cultivated marijuana to create a reasonable doubt that
he was guilty of both charged offenses. There was no such evidence. Therefore, we also
reject defendant‟s contention that his trial attorney was incompetent for not requesting
this instruction.
As for defendant‟s contention that the jury should have been instructed on the
difference between making a profit and operating a business for profit, we have already
concluded that the MMPA is quite clear in its prohibition on making a profit,30 that
28 The prosecutor argued that the fact that defendant received cash instead of
checks suggested that he was more like a street dealer than a legitimate member of
collective, in the same way as the text messages, where defendant met the people to
whom he gave marijuana and other facts suggested the same. In Hochanadel, supra, 176
Cal.App.4th at pages 997, 1018, the appellate court cited, inter alia, the fact that an
asserted collective was a cash-only enterprise as an indicator that it was not a nonprofit.
29 Only one witness testified that defendant had a medical marijuana card that was
not a primary caregiver‟s card. However, defendant never asserted that the marijuana in
the trunk was just for him—such an argument would have been absurd.
30 Defendant‟s discussion of the difference between the two is in the context of
cooperatives, which is not relevant to this trial.
34
concept is completely understandable by reasonable jurors, and no further elaboration of
the subject was required.31
31 Before oral argument, defendant submitted a supplemental letter brief in which
he called our attention to two cases which he asserted were relevant to a number of the
issues he raised in his briefs. They are not. The first case is People ex rel. City of Dana
Point v. Holistic Health (2013) 213 Cal.App.4th 1016 (Dana Point), in which Division
Three reversed the granting of a summary judgment motion by the city, who sued
Holistic Health [hereinafter, “Holistic”], a medical marijuana collective, for nuisance
abatement and illegal business practices, on the basis that Holistic made a profit from
distributing medical marijuana, as outlawed by the Compassion Use Act (CUA) and the
Medical Marijuana Program Act (MMPA). (Id. at p. 1020.) Division Three concluded
that summary judgment should not have been granted because there remained a disputed
issue of triable fact whether Holistic made a profit or was organized and operated as a
nonprofit mutual benefit corporation. (Ibid.) The evidence the appellate court looked at
in concluding that there was a triable issue of fact was: 1) Holistic‟s California charities
and nonprofits tax return, which reported a loss of $35,000 for that year; 2) Holistic‟s two
financial statements, confirming a negative net income one year and a greater loss the
next year, 3) the deposition of Holistic‟s president in which he denied that he received
loans or other compensation, and, in fact, that he lent $100,000 of his own money to
Holistic and had not been repaid, and he denied that Holistic operated for the profit of its
shareholders and asserted that it receives compensation only for the cost of doing
business, 4) Holistic‟s articles of incorporation, which identified it as a nonprofit mutual
benefit corporation, whose purpose was the same as provided for in the CUA, 5)
Holistic‟s written member terms and conditions, which showed that member
contributions were aimed at sustaining the collective, not to earn a profit. (Id. at pp.
1027-1028.) In contrast, as already stated, there was no evidence in this case that
whatever organization defendant suggested he was operating had any of these features,
except for the unsupported assumptions of two of the defense witnesses, based on no
evidence whatsoever, that it was nonprofit. There is nothing in this aspect of Dana Point
that supports any of the arguments defendant advances in his briefs.
Dana Point otherwise observed, although not pertinent to the holding therein
because the last below-mentioned feature arguably did not relate to the supplying of
marijuana to Holistic (id. at p. 1033), that all agricultural and consumer cooperatives
must organize and operate as nonprofit entities, but “they may make „patronage
distributions‟ in amounts corresponding to each member‟s „patronage of the corporation‟
through the purchase of goods or services [citation], repay or refund member
contributions [citation], and even pay „dividends‟ thereon, as a form of interest on capital,
without jeopardizing their nonprofit status [citations]. Valid nonprofit expenditures
expressly include . . . „a fair remuneration . . . ‟ for „time . . . actually spent . . . in its
[footnote continued on next page]
35
[footnote continued from previous page]
service . . . .‟ [Citation.]” (Id. at pp. 1020-1021.) Again, there is nothing in these
features of a cooperative that supports any of defendant‟s arguments because there was
no evidence that any of these features existed in this case. As already stated, section
11362.765, subdivision (c) expressly allows a primary caregiver to receive compensation
for actual expenses, including reasonable compensation incurred for services provided to
enable the patient or card holder to use marijuana and for out-of-pocket expenses in
providing those services. The testimony of the prosecution‟s expert provided sufficient
evidence to support the jury‟s conclusion that defendant was selling marijuana for a
profit, i.e., that he was receiving more than reasonable compensation for his services and
out-of-pocket expenses.
The second case is People v. Jackson (2012) 210 Cal.App.4th 525, in which
Division One of this court overturned the defendant‟s convictions for selling marijuana
and possessing it for sale. (Id. at p. 529.) The trial court prohibited defendant from
introducing evidence to support a collective defense solely because the nonprofit
collective of MMPA qualified patients at issue had only six marijuana cultivators, but
1,600 other members who were supplied marijuana by the six. (Ibid.) The trial court
reasoned that because of this, defendant could not establish that the collective was
operated for the purpose of collectively cultivating marijuana, rather than just distributing
marijuana. (Ibid.) Division One noted that defendant‟s burden was “not very great[—]
only . . . to produce evidence which would create a reasonable doubt as to whether the
[collective] defense . . . had been established. . . . As we interpret the MMPA, the
collective or cooperative association . . . need not include active participation by all
members in the cultivation process but may be limited to financial support by way of
marijuana purchases from the organization. Thus, contrary to the trial court‟s ruling, the
large membership of [the] collective, very few of whom participated in the actual
cultivation process, did not, as a matter of law, prevent [defendant] from presenting a
[collective] defense.” (Id at pp. 529-530.)
The appellate court went on to note that in determining whether the collective
defense has been established, a jury must determine whether it is for profit or nonprofit
and the fact that there are a small number of cultivators and a large number of consumers
could, along with evidence of, inter alia, “the members‟ participation in the operation and
governance of the collective,” lead to a reasonable inference that it was the former. (Id.
at p. 530.) There is nothing in any language used in Jackson that assists defendant in any
of his arguments except as noted in footnote 28 of this opinion. (See fn. 27, ante, p. 32.)
36
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
37