The People v. Watrous CA4/3 ( 2013 )

Filed 9/16/13 P. v. Watrous CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G046917
v. (Super. Ct. No. 09NF3431)
STANLEY ROBERT WATROUS, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan and Nicholas S. Thompson, Judges. Affirmed.
Tom Stanley for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Donald W. Ostertag and
Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The trial court placed defendant Stanley Robert Watrous on three years’
formal probation after a jury found him guilty of possessing marijuana for sale (Health &
Saf. Code, § 11359; all further statutory references are to this code unless otherwise
indicated) and transporting marijuana (§ 11360, subd. (a)). On appeal, defendant
challenges the denial of his pretrial motion to suppress evidence (Pen. Code, § 1538.5)
and the trial court’s failure to instruct the jury that it could find his actions were lawful
under the Compassionate Use Act of 1996 (§ 11362.5; CUA) or the Medical Marijuana
Program (§ 11362.7 et seq.; MMP). Finding no error, we affirm the judgment.
DISCUSSION
1. Defendant’s Motion to Suppress Evidence
a. Background
Deputy Sheriff Hector Romero was the sole witness at the hearing on
defendant’s suppression motion. Romero testified he was on duty and driving a marked
patrol vehicle one evening in late November 2009 when he saw a vehicle driven by
defendant with a plastic cover over the rear license plate and tinted windows. Based on
these observations, Romero made a traffic stop.
As Romero approached the car, defendant opened the driver’s side door,
explaining his window was not working. Romero noticed the smell of fresh marijuana
and asked defendant if he had been smoking it in his vehicle. Defendant admitted he had
smoked marijuana earlier. As defendant was retrieving his vehicle registration and proof
of insurance documents, Romero saw his medical marijuana card. Defendant explained
he suffered from glaucoma and a doctor had given him a prescription to use it.
Romero asked defendant if he had marijuana in the vehicle and defendant
admitted “he had a little bit . . . .” Romero asked to see the marijuana. According to
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Romero, defendant “hesitated for a minute, and then he said he didn’t really want to show
it to me, but he would if I really was inclined to see it.” Romero said he was so inclined
and defendant stepped out the car and walked to the trunk area. Just before opening the
trunk, defendant said he had about three pounds of marijuana.
After defendant opened the trunk, Romero saw several jars containing
marijuana. Romero radioed for assistance. Subsequently, it was determined the vehicle
contained 12 pounds of marijuana. Based on this discovery, the sheriff’s department
obtained a search warrant for defendant’s motel room where additional evidence was
seized.
b. Analysis
Defendant argues the trial court erred in denying his pretrial motion to
suppress evidence because the evidence “was derived from an illegal search based upon a
submission to authority.” Noting the prosecutor acknowledged during the suppression
hearing that the basis of the search was probable cause, not consent, defendant claims
Romero’s smelling marijuana when he opened the car door “was without merit due to the
uncontested fact that [he] was entitled to legally possess marijuana . . . .”
The trial court properly denied the motion. Romero’s observation of the
covered rear license plate (Veh. Code, § 5201, subd. (b)) and tinted windows (Veh. Code,
§ 26708, subd. (a)) justified the initial detention. “‘“As a general matter, the decision to
stop an automobile is reasonable where the police have probable cause to believe that a
traffic violation has occurred.” [Citation.] If there is a legitimate reason for the stop, the
subjective motivation of the officers is irrelevant.’ [Citations.]” (People v. Tully (2012)
54 Cal.4th 952, 980.; see also Arizona v. Johnson (2009) 555 U.S. 323, 327 [129 S.Ct.
781, 172 L.Ed.2d 694] [“in a traffic-stop setting” the requirement of “a lawful
investigatory stop—is met whenever it is lawful for police to detain an automobile and its
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occupants pending inquiry into a vehicular violation” and “[t]he police need not have, in
addition, cause to believe any occupant of the vehicle is involved in criminal activity”].)
Romero, who had both training and experience related to marijuana,
testified he smelled fresh marijuana when defendant opened the driver’s side door.
This fact provided probable cause to expand the scope of the detention. In People v.
Cook (1975) 13 Cal.3d 663, disapproved on another ground in People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22, the California Supreme Court declared police officers
“could rely on a strong aroma of fresh marijuana as giving [them] ‘“probable cause to
believe . . . that contraband may be present[]”’” in upholding the warrantless search of a
car after stopping it for speeding. (People v. Cook, supra, 13 Cal.3d at p. 668.)
Cook also imposed a requirement the search be justified by the presence of
exigent circumstances. (People v. Cook, supra, 13 Cal.3d at p. 669.) But since the
enactment of Proposition 8, we judge the propriety of a challenged search or seizure
under federal law. (People v. Schmitz (2012) 55 Cal.4th 909, 916 [“Challenges to the
admissibility of evidence obtained by a police search and seizure are reviewed under
federal constitutional standards”].) Evidence of exigent circumstances is not required to
justify the search of a vehicle under the Fourth Amendment’s automobile exception.
(Pennsylvania v. Labron (1996) 518 U.S. 938, 940 [116 S.Ct. 2485, 135 L.Ed.2d 1031].)
“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search
of every part of the vehicle and its contents that may conceal the object of the search.”
(United States v. Ross (1982) 456 U.S. 798, 825 [102 S.Ct. 2157, 72 L.Ed.2d 572].)
When Romero detained defendant, the MMP prohibited the arrest of a
person who possessed or transported marijuana (§ 11362.71, subd. (e)), but limited the
amount of marijuana one could possess to no more than eight ounces, absent a doctor’s
recommendation (§ 11362.77, subds. (a) & (b)). In People v. Kelly (2010) 47
Cal.4th 1008, the Supreme Court struck down this limitation, finding it “conflict[ed]
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with . . . the CUA’s guarantee that a qualified patient may possess and cultivate any
amount of marijuana reasonably necessary for his or her current medical condition.”
(Id. at p. 1043.) But the decision in Kelly was issued in January 2010 and thus does not
affect the validity of Romero’s November 2009 search of defendant’s vehicle. (Michigan
v. DeFillippo (1979) 443 U.S. 31, 37-40 [99 S.Ct. 2627, 61 L.Ed.2d 343][search incident
to arrest upheld even though based on ordinance later declared unconstitutional]; People
v. Hardacre (2004) 116 Cal.App.4th 1292, 1300-1301 [search conducted after stop for
speeding upheld even though court found stop resulted from illegal speed trap].)
Defendant’s reliance on his medical marijuana card does not alter the result.
People v. Strasburg (2007) 148 Cal.App.4th 1052 upheld the search of a defendant’s car
even though the defendant informed the deputy sheriff before the search that he was
authorized to possess marijuana. “Under the facts and circumstances of this case,
Deputy Mosely had probable cause to search defendant’s car for marijuana after he
smelled the odor of marijuana. [Citations.] Defendant admitted smoking marijuana, and
the deputy sheriff saw another bag of marijuana in the car after defendant handed him
one. Armed with the knowledge that there was marijuana in the car, ‘a person of
ordinary caution would conscientiously entertain a strong suspicion that even if defendant
makes only personal use of the marijuana found in [the passenger area], he might stash
additional quantities for future use in other parts of the vehicle, including the trunk.’
[Citation.] [¶] The fact that defendant had a medical marijuana prescription, and could
lawfully possess an amount of marijuana greater than that Deputy Mosely initially found,
does not detract from the officer’s probable cause. . . . [T]he [CUA] provides a limited
immunity—not a shield from reasonable investigation. An officer with probable cause to
search is not prevented from doing so by someone presenting a medical marijuana card or
a marijuana prescription. Given the probable cause here, the officer is entitled to
continue to search and investigate, and determine whether the subject of the investigation
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is in fact possessing the marijuana for personal medical needs, and is adhering to
the . . . limit on possession.” (Id. at pp. 1059-1060.)
The same is true here. Romero smelled fresh marijuana when defendant
opened the door. Defendant admitted recently using marijuana and that he had “a little
bit” of it in the car. His display of a medical marijuana card did not bar a further search
of the car.
In his opening brief, defendant refers to cases involving custodial
interrogation. The reason for citing these cases is not explained. But to the extent
defendant may be suggesting Romero violated his rights by asking whether he had any
marijuana, it is well settled “a routine traffic stop, although a detention, is not tantamount
to a formal arrest, and, therefore, questions asked during such detentions do not constitute
a custodial interrogation requiring Miranda [Miranda v. Arizona (1966) 384 U.S. 436 [86
S.Ct. 1602, 16 L.Ed.2d 694]] warnings. [Citation.]” (People v. Tully, supra, 54
Cal.4th at p. 982; see also Berkemer v. McCarty (1984) 468 U.S. 420, 435-440 [104 S.Ct.
3138, 82 L.Ed.2d 317].) Further, Romero testified defendant was cooperative and
described their conversation as “casual, friendly.” Finally, since defendant volunteered
he had three pounds of marijuana in his car, a custodial interrogation claim as to this
statement would lack merit in any event.
We conclude the trial court properly denied defendant’s motion to suppress
evidence.
2. Defendant’s Medical Marijuana Defense Claims
a. Background
Before trial began, the court considered the prosecution’s Evidence Code
section 402 motions seeking to bar defendant from asserting two affirmative defenses; (1)
he was a qualified caregiver, and (2) participated in the operation of a legitimate medical
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marijuana cooperative. Defendant presented offers of proof in support of each
affirmative defense. Relying on this court’s then recent decision in City of Lake Forest v.
Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413, review granted May 16,
2012, S201454, briefing deferred pursuant to rule 8.512(d)(2), California Rules of Court,
the trial court granted the People’s motion.
During trial, Romero testified in conformity with the testimony he gave
during the suppression hearing. In addition, he stated defendant’s car contained 24 jars
each containing one-half pound of marijuana, plus a scale and a cigarette rolling machine.
According to Romero, when asked why he had so much marijuana, defendant said he had
come from up north and was going to sell the marijuana to a dispensary located near
LAX.
Orange County Sheriff’s Investigator Larry Zurborg testified that after
arriving at the scene of the vehicle stop, defendant said he lived in Trinity County.
Zurborg learned defendant was staying at a nearby motel and obtained a search warrant
for his room. The search resulted in the discovery of nearly $14,000 in cash, most of it in
$20 denominations, plus a couple of ounces of marijuana. Defendant also told Zurborg
he was trying to sell his excess marijuana for $1,600 a pound to a cooperative near LAX.
Defendant claimed to belong to a Northern California cooperative and that he was a
primary caregiver to three persons, one of whom lived in Orange County. But defendant
could not recall the local patient’s last name or address, although he claimed he knew
how to reach her residence. Defendant denied belonging to a cooperative in the Los
Angeles or Orange County area.
Testifying as an expert, Zurborg stated a person who was a heavy user of
marijuana would ingest about 3 grams a day. Over one year that would amount to 2.4
pounds of marijuana. Based on defendant’s statements, the amount of marijuana found in
his car and the way it was packaged, along with the scale and large amount of cash,
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Zurborg opined he possessed the marijuana for sale. On cross-examination, Zurborg
acknowledged members of a collective or cooperative can distribute marijuana among the
members, but he did not think a person could be reimbursed for out-of-pocket expenses
incurred growing marijuana for a collective. He understood compensation and
reimbursement for costs was limited to expenses incurred by a primary caregiver.
Zurborg agreed defendant’s sale price was comparatively low, claiming marijuana from
Northern California “is going for . . . [$]3,000 a pound, [$]4,000 a pound . . . .”
The defense called three witnesses. Corporal Omar Brown of the Trinity
County Sheriff’s Department testified defendant calls the department every year about his
marijuana growing operation. Brown had served search warrants on defendant’s property
in 2004 and 2005 and, on each occasion, concluded the operation was in compliance with
the law.
William Britt, the director of an organization named the Association of
Patient Advocates, testified concerning the nature of marijuana collectives, the process of
growing marijuana, the expenses involved in its cultivation, and the means used to ingest
the drug. Britt estimated the typical patient who smokes marijuana uses three to six
pounds a year.
According to Britt, it costs about $3,000 to produce a pound of marijuana
indoors and a little over one-half that amount if it is grown outdoors. These estimates
included the cost of labor which he testified ranged between $10 and $25 per hour.
Excluding labor expenses, the cost of growing marijuana would range between $1,500
and $2,000 if grown indoors and between $200 and $500 if grown outdoors. Britt also
claimed a grower would be entitled to reimbursement for electricity, equipment, and the
portion of the mortgage or rent attributable to the growing process. He concluded the
packaging of the marijuana found in defendant’s car was consistent with either
distribution to collectives or personal use.
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At the defense’s request, the court took judicial notice of two documents.
The first, from the California Secretary of State, reflected the incorporation of an entity
named All-American Health and Healing Cooperative (All-American). The second was
that entity’s articles of incorporation, which stated All-American was a nonprofit
corporation facilitating the collective and cooperative cultivation and distribution of
medical marijuana.
Defendant testified he lives in Trinity County. He has several medical
conditions, including glaucoma, rheumatoid arthritis, adult-onset diabetes, and has
suffered two heart attacks. Since 1994, defendant has received Social Security Disability
Insurance payments. He obtained authorization to use medical marijuana from his
cardiologist. In 2002, defendant began growing marijuana. Currently, he owns a one and
one-half acre lot, two-thirds of which he uses to grow marijuana. Defendant claimed he
joined All-American in the summer of 2009. He also testified to having a caregiver role
distributing marijuana to persons with medical marijuana cards.
When arrested, defendant was attempting to deliver the 12 pounds of
marijuana found in his car to All-American’s Inglewood dispensary. He denied telling
the deputy sheriffs he intended to sell the marijuana.
Defendant described the costs he incurred to grow marijuana; materials for
building grow boxes, installing in a well on his property, gasoline to run a generator and
for vehicular expenses, plus his mortgage. He claimed these expenses totaled around
$18,000, not including the value of his time and effort.
On cross-examination, defendant testified the money seized from his motel
room was received from a Sacramento dispensary to which he also belonged and had
provided marijuana. Defendant claimed to also be a member of the Sacramento
dispensary. Asked about his caregiving activities, defendant acknowledged he did not
provide housing, health, or safety assistance to any medical marijuana patient, explaining
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“[w]hen I use the word ‘caretaker’ what I’m saying is that I grow medical marijuana for
people who can’t.”
Defendant explained he decided to stay at a motel while in Southern
California because when he visited All-American’s dispensary “they . . . told me that the
amount of medical marijuana that I had was more than their limit and that I needed to
come back in two days.” He acknowledged the marijuana found in his car constituted his
first delivery to All-American. In response to a juror’s question, defendant testified he
grew 44 pounds of marijuana in 2009. Other than the 12 pounds intended for the
Inglewood dispensary, plus 10 pounds he distributed to the Sacramento dispensary,
defendant claimed he grew “five and quarter pounds [each for himself], and three other
people.” No accounting was provided for the additional pound.
b. Analysis
Arguing he “was entitled to reasonable compensation for his costs in
providing medical marijuana under the law,” defendant claims the trial court erred by
precluding him from presenting evidence in support of his caregiver and medical
marijuana defenses and by not instructing the jury on them. We conclude the trial court
did not err.
The trial court did not bar defendant from presenting evidence of his
purported caregiver status or his distribution of marijuana to collectives of which he
claimed to be a member. The sole question is whether the trial court erred in refusing to
instruct the jury on the caregiver and medical marijuana defenses to the charges.
“‘It is well settled that a defendant has a right to have the trial
court . . . give a jury instruction on any affirmative defense for which the record contains
substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor
of the defendant [citation]—unless the defense is inconsistent with the defendant’s theory
10
of the case [citation]. In determining whether the evidence is sufficient to warrant a jury
instruction, the trial court does not determine the credibility of the defense evidence, but
only whether “there was evidence which, if believed by the jury, was sufficient to raise a
reasonable doubt . . . .” [Citations.]’ [Citations.] On appeal, we likewise ask only
whether the requested instruction was supported by substantial evidence — evidence that,
if believed by a rational jury, would have raised a reasonable doubt” as to defendant’s
guilt. (People v. Mentch (2008) 45 Cal.4th 274, 288.)
As for the caregiver affirmative defense, the record clearly establishes
defendant’s argument lacks merit. He relies on section 11362.5. Subdivision (d) of that
statute declares “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 the written or oral recommendation or approval of a
physician.” Defendant was charged with possessing marijuana for sale (§ 11359) and
transporting marijuana (§ 11360), not sections 11357 or 11358. Nor did defendant
qualify as a primary caregiver. The statute defines this term as “the individual designated
by the person exempted under this section who has consistently assumed responsibility
for the housing, health, or safety of that person.” (§ 11362.5, subd. (e).) The defense
failed to present any proof that the individuals for whom defendant claimed to be a
caregiver qualified as exempt persons under section 11362.5. Further, in Mentch, the
Supreme Court held “a defendant asserting primary caregiver status must prove at a
minimum that he or she (1) consistently provided caregiving, (2) independent of any
assistance in taking medical marijuana, (3) at or before the time he or she assumed
responsibility for assisting with medical marijuana.” (People v. Mentch, supra, 45
Cal.4th at p. 283.) Defendant acknowledged his caregiving activities were limited to
solely providing marijuana to others. This conduct alone cannot support a caregiver
defense.
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Defendant also relies on the MMP. In part, it declares “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 . . . 11359 [and] 11360 . . . .” (§ 11362.775.) To justify an instruction on
this affirmative defense, defendant had the burden of producing evidence sufficient to
raise a reasonable doubt as to whether his activity was protected by the statute. (People
v. Solis (2013) 217 Cal.App.4th 51, 57.) The Supreme Court has recently recognized
both the CUA and the MMP provide only limited protection from criminal prosecution
for marijuana-related crimes. (City of Riverside v. Inland Empire Patients Health &
Wellness Center, Inc. (2013) 56 Cal.4th 729, 748-749.) As for the MMP, the court noted
“section 11362.775[] provides only that when particular described persons engage in
particular described conduct, they enjoy, with respect to that conduct, a limited immunity
from specified state marijuana laws.” (Id. at p. 748.)
Several cases have recently considered the scope of this limited defense. In
People v. Colvin (2012) 203 Cal.App.4th 1029, the court held a defendant charged with
transporting one pound of marijuana between two dispensaries belonging to the same
cooperative was entitled to assert a defense under section 11362.775. In so ruling Colvin,
rejected arguments that transporting marijuana was unrelated to its cultivation and the
MMP defense was limited small scale operations. “[T]o be entitled to a defense under
section 11362.775, a defendant must, first, be either a qualified patient, person with a
valid identification card or a designated primary caregiver. Second, the defendant must
associate with like persons to collectively or cooperatively cultivate marijuana.
[Citation.]” (People v. Colvin, supra, 203 Cal.App.4th at p. 1037.) Colvin found the
defendant constituted a qualified patient. And, based on the detailed description of the
12
cooperative, including the size of its membership, new member induction process, plus
how and where it obtains the marijuana provided to members (id. at pp. 1032-1033), the
court found the defendant belonged to a dispensary that satisfied the statutory
requirements to distribute marijuana for medical purposes. “Colvin/Holistic is a
cultivator . . . . All of the marijuana Holistic distributes is from a cooperative member;
none of it is acquired from an outside source. Thus, even under a reading of section
11362.775 limiting transportation of marijuana only to cooperatives that cultivate it, then
Colvin was entitled to the immunity.” (People v. Colvin, supra, 203 Cal.App.4th at p.
1037.)
People v. Jackson (2012) 210 Cal.App.4th 525, followed Colvin, also
rejecting a claim the defense did not apply because of the large size of the collective to
which the defendant belonged. “The defense the MMPA provides to patients who
participate in collectively or cooperatively cultivating marijuana requires that a defendant
show that members of the collective or cooperative: (1) are qualified patients who have
been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate
marijuana, and (3) are not engaged in a profit-making enterprise. . . . Thus, contrary to
the trial court’s ruling, the large membership of Jackson’s collective, very few of whom
participated in the actual cultivation process, did not, as a matter of law, prevent Jackson
from presenting an MMPA defense.” (Id. at pp. 529-530.) Finally, in People v. Solis,
supra, 217 Cal.App.4th 51, the court rejected the applicability of the defense created by
section 11362.775, holding it “does not apply . . . if the operation does not meet the
definition of a ‘collective or cooperative’ and marijuana has been sold for a profit.” (Id.
at p. 53.)
Thus, to support an instruction on the MMP as an affirmative defense,
defendant had to present evidence that: (1) He was either a medical marijuana patient,
holder of an identification card authorizing his use of medical marijuana, or the primary
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caregiver of such a patient or card holder; (2) associated with others to collectively or
cooperatively cultivate medical marijuana; and (3) the collective or cooperative itself
satisfies the statutory requirements for cultivating and distributing medical marijuana.
Defendant testified he was a medical marijuana patient and established he possessed an
identification card. But the evidence in support of the latter two requirements was
lacking.
When discussing the applicability of the limited defense afforded by section
11362.775, Colvin, Jackson, and Solis placed heavy reliance on guidelines issued by the
Attorney General under section 11362.81, subdivision (d). (Guidelines for the Security
and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008)
();
hereafter Guidelines.) The Guidelines, which “‘are entitled to considerable weight’”
(People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011), define a cooperative as an
entity “properly organized and registered as . . . a corporation” that is “‘democratically
controlled and . . . primarily for their members as patrons.’ [Citation.]” (Guidelines,
§ IV.A.1, p. 8.) It “must follow strict rules on organization, articles, elections, and
distributions of earnings, and must report individual transactions from individual
members each year. [Citation.]” (Ibid.) A collective is defined as “‘a business, farm,
etc., jointly owned and operated by the members of a group[,]’” that “facilitates the
collaborative efforts of patient and caregiver members — including the allocation of costs
and revenues.” (Id., IV.A.2 p. 8.) Both cooperatives and collectives “should only
provide a means for facilitating or coordinating transactions between members.” (Id.,
IV.A.1 & 2 p. 8.)
In addition, the Guidelines recommend these entities “be organized with
sufficient structure to ensure security, non-diversion of marijuana to illicit markets, and
compliance with all state and local laws.” (Guidelines, § IV.B, p. 9.) Among the
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suggested steps, the Attorney General urged collectives and cooperatives “acquire
marijuana only from their constituent members,” implementing “a closed-circuit of
marijuana cultivation and consumption” that “document[s] each member’s contribution
of labor, resources, or money to the enterprise.” (Id., IV.B.4, p. 10.) For reimbursement,
the Guidelines recommend these entities charge “fees that are reasonably calculated to
cover overhead costs and operating expenses . . . .” (Id., IV.B.6, p. 10.) Finally, on the
operation of a dispensary, the Attorney General stated: “It is the opinion of this Office
that a properly organized and operated collective or cooperative that dispenses medical
marijuana through a storefront may be lawful under California law,
but . . . dispensaries that do not substantially comply with the guidelines . . . are likely
operating outside the protections of Proposition 215 and the MMP . . . . For example,
dispensaries that merely require patients to complete a form summarily designating the
business owner as their primary caregiver — and then offering marijuana in exchange for
cash ‘donations’ — are likely unlawful.” (Id., IV.C.1, p. 11.)
Defendant failed to provide sufficient evidence either the Sacramento
dispensary or All-American complied with the statutory requirements for lawfully
cultivating and distributing medical marijuana. While claiming to be a member of a
Sacramento dispensary, he presented no evidence concerning the nature of that
organization. In addition, his description of how it reimbursed him for the marijuana
delivery, “put[ting] it up on the board and ask[ing] for contributions,” and then giving
him “what [it] collected from [the] members,” reflects the Sacramento dispensary
effectively “offer[ed] marijuana in exchange for cash ‘donations,’” contrary to the
Attorney General’s Guidelines. (Guidelines, IV.C.1, p. 11.)
Before trial, the defense identified defendant as a member of All-American,
but provided no further information on its status or operation. During trial, it presented
documentation defendant belonged to All-American, that it had filed as a nonprofit
15
corporation with the Secretary of State, and its articles of incorporation described All-
American’s purpose was the collective and cooperative cultivation and distribution of
medical marijuana. But there was no evidence concerning the process All-American
employed to ensure its membership consisted of only persons qualified to use medical
marijuana, or describing either its finances or operation. Jackson recognized that “in
determining whether a collective or cooperative is a nonprofit enterprise, its
establishment as such” through “[a]n operator’s testimony as to the nonprofit nature of
the enterprise,” or the introduction of “any financial records . . . will be relevant,
including in particular any processes or procedures by which the enterprise makes itself
accountable to its membership.” (People v. Jackson, supra, 210 Cal.App.4th at p. 539.)
“[B]y the same token, the absence of fairly complete financial records and any
accountability to members will also be relevant . . . .” (Ibid.) Here, the lack of
documentation precludes defendant from relying on his All-American membership to
establish a defense to the charges.
Further, the evidence indicated defendant operated as a marijuana
wholesaler, merely joining dispensaries to distribute his marijuana without any other
involvement in a cooperative or collective. He did not live near either dispensary,
segregate the marijuana grown for each one, nor had an agreement with them on how
much to grow or when to deliver it. Defendant did not obtain his own medical marijuana
from either dispensary. Rather, he set aside nearly one-half of his crop for his personal
use and that of three other individuals, none of whom were identified as belonging to
either All-American or the Sacramento dispensary. Defendant claimed he “was entitled
to reasonable compensation for his costs,” which Britt estimated to be between $200 and
$1,600 for an outdoor operation. But this amount included labor, not merely
reimbursement for overhead and operating expenses as authorized by the Attorney
General’s Guidelines. Further, the evidence showed the amount defendant received
16
varied. The Sacramento dispensary gave him a little less than $1,400 per pound. There
was evidence defendant was seeking $1,600 per pound from All-American.
Consequently, we conclude defendant failed to present sufficient evidence
to support instructing the jury on either a caregiver or medical marijuana affirmative
defense.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
FYBEL, J.
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