People v. Freeman CA2/2 ( 2016 )

Filed 8/8/16 P. v. Freeman CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B259205
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA394266)
v.
LANIER FREEMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Leslie A. Swain, Judge. Affirmed.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and
William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
INTRODUCTION
Appealing his convictions of possession of marijuana for sale and carrying a
loaded weapon after defending with the California Compassionate Use Act, defendant
asserts that the trial court prejudicially erred in instructing the jury and that the prosecutor
committed prejudicial misconduct. We affirm.
PROCEDURAL BACKGROUND
A jury convicted defendant Lanier Freeman of possession of marijuana for sale in
violation of Health and Safety Code1 section 11359 (count 1) and of carrying a loaded
weapon in a vehicle in violation of Penal Code section 25850, subdivision (a) (count 3).
The jury acquitted defendant of a charge that he was carrying a loaded weapon on his
person (Pen. Code, § 25850, subd. (a)) (count 2).
After denying a new trial motion, the trial court imposed and then suspended
sentence on defendant. The court placed defendant on three years of formal probation on
count 1, with concurrent summary probation as to count 3. The court ordered defendant
to serve two days in county jail, with credit for time served.
Defendant contends on appeal: (1) during argument, the prosecutor second-
guessed the physician’s recommendation that defendant should use medical marijuana,
which misled the jury into believing it could reject defendant’s Compassionate Use Act
(§ 11362.5) defense; (2) the trial court erred in failing to give a curative instruction to
redirect the jury from the misleading statements in the prosecutor’s argument;
(3) defendant received ineffective assistance of counsel if the instructional and
prosecutorial conduct claims have not been preserved for review; (4) defense counsel was
ineffective for failing to object to the prosecutor’s rebuttal argument that undermined the
People’s burden of proof beyond a reasonable doubt; and (5) the cumulative effect of the
errors requires that the judgment be reversed.
1 All further statutory references are to the Health and Safety Code unless otherwise
stated.
2
TRIAL
I. Prosecution Evidence
Los Angeles Police Department (LAPD) Officers Jose Reyes and Dana Oviatt
were patrolling on February 3, 2012, at around 8:30 p.m., in their assigned area that
includes Cimarron Street and Manchester Avenue in the City of Los Angeles. The area
was known to the officers for its high narcotics and gang activities. The officers were in
full uniform in an unmarked, silver police vehicle.
With Officer Reyes driving, the officers pulled into a strip mall where most of the
businesses were closed, but some individuals were congregating at the rear next to a
black Jeep Cherokee.2 As he pulled up in the unmarked vehicle, Officer Reyes saw
defendant. Officer Reyes stopped the vehicle in front of the Jeep, and Officer Oviatt got
out and walked toward the Jeep. Defendant reached underneath his waistband, pulled out
a medium-sized handgun, walked toward the right rear passenger door of the Jeep and
tossed the handgun into the car. Defendant then slammed the door and walked to the rear
of the Jeep.
As Officer Oviatt walked toward the rear of Jeep, he told defendant and the other
individuals that he had received a report of a fight at the location. Officer Oviatt falsely
said there was a fight report because he wanted to deescalate the situation. After the two
officers handcuffed defendant, Officer Oviatt searched defendant’s pockets and found
$741 in large and small bills.
After defendant was handcuffed, Officer Reyes went to the Jeep to recover the
handgun. Before Officer Reyes went to the Jeep, defendant said, “I’m a former cop. I
didn’t want to get caught with it.” Officer Reyes thought defendant was referring to the
handgun that defendant had just tossed into the Jeep. Defendant added that, in the past,
he had worked for the Compton Police Department for five years.
2 According to defendant, the vehicle was a Jeep Liberty.
3
While searching the Jeep, Officer Reyes found a Glock handgun on the floorboard.
The Glock had one live round chambered and a magazine with nine bullets. As he
continued to search the vehicle, he found on the rear seat next to a backpack an additional
firearm magazine with nine rounds. Searching the backpack, Officer Reyes found several
loose .38-caliber bullets, prompting him to search the rest of the vehicle to find a gun that
matched the bullets. Officer Reyes did not find a gun that went with the .38-caliber
bullets. However, the backpack also contained 7.62-caliber rifle bullets in a magazine.
There were bullets of different sizes throughout the vehicle. Officer Reyes eventually
found four empty magazines, three of which would have fit a Bersa Thunder .380 and the
fourth would fit a .25-caliber handgun, which was never recovered.
Officer Reyes subsequently showed the .38 rounds to Officer Oviatt and told him
that he could not find the gun. Defendant then stated that the gun was not a .38 but a
.357, which was inside a locked black briefcase. Defendant told the officers that the .357
was loaded. Defendant provided the combination to the briefcase, which contained four
additional handguns: a loaded .357 Smith and Wesson revolver, an unloaded Derringer,
an unloaded Bersa Thunder .380 (with a missing outside grip), and an unloaded .380
Thunder 5 revolver that fires rifle rounds.
As Officer Reyes searched the rear of the Jeep for guns, there was a strong
marijuana odor coming from the cargo area. Officer Reyes saw a paper bag which
contained a digital scale and nine Mason jars with a leafy substance. Officer Reyes
recognized the substance as marijuana. Nine jars were labeled as “Sour Diesel,” “Master
Kush,” “Green Crack,” “Train Wreck,” “Bubba Kush,” “Blue Dream,” “O Kush,”
“Black” and “Tai.” Each of the nine jars contained about one ounce of dried marijuana in
“bud” form. Other than the digital scale and marijuana, there was no other narcotics
paraphernalia in the Jeep. There were no Ziploc bags, no smaller prepackaged baggies,
no client lists, or other items normally associated with the sale of marijuana.
Defendant did not mention that he had a medical recommendation for the use of
marijuana. While they were still at the scene, defendant told the officers that he lived in
Beverly Hills. He also said that he was an unemployed security guard. While defendant
4
was being transported to the police station, Officer Oviatt asked him if he had a
concealed weapons permit. Defendant replied that he did not.
II. Prosecution Expert Evidence Concerning Marijuana for Sale
Eric Bixler, an LAPD detective, testified as a narcotics expert. In Detective
Bixler’s opinion, an individual who possessed nine ounces of marijuana, under the
circumstances in which defendant was arrested, would do so for the purpose of sale. The
circumstances included: (1) a person is in a strip mall parking lot at 8:30 p.m.; (2) the
person is at the rear of a vehicle with nine Mason jars with an even amount of marijuana
bud in each jar; (3) each jar has an individual name; (4) there is a digital scale with the
jars; (5) the person is unemployed and has $740 in cash on him; (6) the person lives in a
different city than that where the vehicle is parked; (7) there is no drug paraphernalia for
use in smoking marijuana; and (8) the person is armed with a loaded .40-caliber Glock
handgun and has a loaded .357-caliber handgun near the marijuana. Detective Bixler
testified that drug dealers often use firearms to protect the narcotics and the cash from the
sales. About 85 percent of the people he had arrested for possession for sale had
firearms.
Detective Bixler opined that an individual would not have nine differently labeled
jars for personal use because users tend to stick to one type of marijuana. Detective
Bixler had contact with thousands of users but could not recall an individual person
having marijuana stored in that many different jars with that much marijuana. That
amount of marijuana for personal use would last a single person who smokes a lot about
six months. It is very common for sellers on the street to have Mason jars or some other
container such as Tupperware to seal and keep the moisture in the bud and to prevent the
smell from coming out.
On cross-examination, Detective Bixler testified that medical marijuana users
tended to buy their supplies on a weekly basis and did not store them at home. The
amount that they have on hand would depend on their medical need.
Detective Bixler testified that there was no law that required medical marijuana
users to buy their marijuana or prevented them from growing their own. Medical
5
marijuana users with recommendations, who grow their own marijuana, pick the amount
they need off the plants. If they store it, they usually put it in a Ziploc bag and stick it in
the freezer.
The only people he had seen who store marijuana in a bulk like that in jars are
dealers. Medical marijuana users also do not use scales to weigh their purchases because
it would be weighed at a dispensary. The weight is usually not relevant because the
pertinent thing is the amount of Tetrahydrocannabinol (THC) in the plant. They do not
store the marijuana in Mason jars but in pill bottles. Users who grow their own do not
normally use scales because they estimate the amount they need by sight.
Detective Bixler had experience with medical marijuana users who use tinctures or
ointments. In his experience, individuals who use marijuana in tincture or ointment
forms will purchase it because it is very difficult to make.
On cross-examination, Detective Bixler testified that, in his opinion, if there were
no pill bottles, baggies or other packaging, the individual would be selling more by the
ounce or by the pound. The lack of packaging for smaller amounts simply made him
believe defendant was a bulk dealer rather than a gram dealer because of the amount of
marijuana. That amount of marijuana stored in a vehicle would cause the THC content to
denigrate “real quick.” Detective Bixler testified that “[y]ou can’t store it like that for
personal use.”
On redirect, Detective Bixler testified that marijuana stored and sealed in a Mason
jar can denigrate about 50 percent overnight if it is warm outside. If it is stored in a cool,
dry place or a freezer in a vacuum-sealed container, the marijuana’s THC potency can be
maintained for a year.
III. Defendant’s Evidence
Defendant testified he was a police officer with the City of Compton from 1997 to
2000. He worked as a jailer for the police department for two years prior to that. He
took a family medical leave of absence in 2000 when his wife was injured on her job.
During his absence from the police department, it merged with the Los Angeles County
Sheriff’s Department. Defendant missed the deadline for applying to be a sheriff and was
6
unsuccessful in being reinstated. He abandoned his efforts to be reinstated for financial
reasons.
Defendant testified that, because of his arrest, he was currently employed to do
security installations and courier work. At the time of his arrest, he was a security guard
but did not hold a license to possess a firearm because his licenses had expired. He had
been in the process of reapplying for the licenses.
On the date of his arrest in 2012, defendant was living in one of the upstairs
commercial units at the arrest location. Defendant was completing construction at one of
the units to open a business. For the majority of the week, he stayed there but not every
night. Defendant also had a home in Bellflower. The Beverly Hills address is a mailing
address.
He had guns in the Jeep because he was going to take them to be cleaned on his
way to Bellflower but stopped to talk to someone at a beauty salon in the strip mall. All
the guns were locked and unloaded in a briefcase in the cargo area of the Jeep. All the
guns were registered to defendant.
When the police arrived, Officer Oviatt shined his light into the Jeep and
defendant said, “Hey, that’s mine. I’m right here.” When Officer Oviatt said there was a
report of a fight, defendant responded, “bullshit.” According to defendant, Officer Reyes
then came from behind him and placed him in a control hold. He asked defendant,
“Where are the guns?” Officer Reyes said that he had found a backpack with some
ammunition in the Jeep.
Defendant testified that, as he was being handcuffed, he told the officers that his
shoulder was injured. Defendant denied having guns on him or making a statement that
he did not want to get caught with a gun on his person.
Defendant had a recommendation to have medical marijuana for pain in his
shoulder, a pinched nerve and headaches. Defendant got the medical recommendation,
which was dated January 30, 2012, from Dr. Lee Winkler. On cross-examination,
defendant testified that he had filled out a portion of the recommendation. Defendant’s
shoulder pain stemmed from a torn rotator cuff, which had been re-aggravated when he
7
attended the police academy. The January 2012 recommendation was the second one
defendant had obtained from Dr. Winkler’s office. He obtained a recommendation a year
before from Dr. Winkler. Defendant took his records to the office the first time he went
but not the second time.
Defendant admitted that he had the nine Mason jars of marijuana in the Jeep.
However, he had the marijuana with him because he was not staying at the unit that
evening. Defendant had grown all the marijuana in the jars sometime around April or
May 2011. Defendant grew the marijuana for use as tinctures, ointments and rubbing
alcohol.
He testified that a tincture is made by taking the dried leaves of the cannabis plant
and fusing it with butter or virgin oils. According to defendant, in the process, the active
ingredients of the plant are extracted for medicinal reasons. The tincture is topical. He
had been using tinctures since 2010 when he got his first recommendation. He was
taking the jars home so he could make tincture at home. Nine ounces was “not a lot” of
marijuana. Because he grew the marijuana outside, it was not the best quality. The nine
ounces would only last him about a month. Defendant had made tinctures about
10 times; however, it was not an “exact science.” There are multiple ways to make it.
Defendant then described how he made the tincture by boiling the cannabis, straining it
and using the extract to fuse it with other ingredients.
Defendant had a scale to calculate what worked best for him to determine how
much cannabis mixed with the oil, salve or alcohol was needed to get relief from his pain.
He labeled the jars because he grew different strains to see how they helped his pain. It
took four months for a plant to mature. He used jars to keep moisture out and keep the
marijuana fresh because the elements will damage the product in baggies. He was not
selling marijuana on that night.
Defendant took classes about the medicinal benefits of marijuana as an alternative
to prescription drugs, which were hurting his kidneys. He was also afraid of prescription
drugs. He learned that it was safer to grow his own because he did not have to worry
about contaminants of mold, fungus and mites from other people’s products. As a former
8
police officer, he was aware that police officers considered marijuana to be a gateway
drug and that all of its uses were bad.
IV. Defendant’s Expert Testimony
Nick Morrow, a private investigator, testified as an expert for the defense in the
field of narcotics, drugs, possession for sales, sales, and medical marijuana. His expertise
of medical marijuana included training on cultivation, packaging and topical
preparations. It also included legal issues related to the Compassionate Use Act and the
Medical Marijuana Program. (§ 11362.7 et seq.)
Morrow testified that a medical recommendation meant that a person could go to a
medical marijuana dispensary collective or the person could grow the marijuana. It did
not mean that the person could have an unlimited amount. The amount should be related
to the individual’s needs, use patterns and the particular condition that is being treated.
People using for medical purposes tend to use more frequently but in smaller amounts
than those who use marijuana to get “high.” Pain patients will use several joints a day
but take two to three puff doses to keep a level of THC and cannabidiol (CBD), which are
the two major chemicals in cannabis, active in their bodies.
Patients ingesting marijuana or making tinctures or ointments use more bulk
cannabis than those smoking it. If the patient is going to ingest the marijuana or make
tinctures and ointments, the chemical needs to be extracted from the plant. The chemical
extraction is then dissolved into a liquid such as ethyl alcohol or drinking alcohol. The
tincture is placed under the tongue or absorbed into food.
According to Morrow, a patient who makes the tinctures or ointments needs
different strains because there are hundreds of marijuana strains, which produce different
effects. Some strains are very effective for pain while others are known for being
effective on nausea and anxiety. Patients will try different strains until they find the one
that best suits their needs. There are several ways to make a tincture or ointment. The
process involves a lot of trial and error because the potency of the cannabis has different
levels of THC, which may produce different results for each batch. Patients grow their
own to control the quality because third party growers often use insecticides or fertilizers
9
that can be toxic. They will grow the plants indoors to protect against insecticides and to
control mold and fungus because some patients are highly sensitive. It takes
approximately eight to 14 weeks to complete the growth process.
Morrow said that patients who buy cannabis from collectives will limit the amount
to daily or weekly portions. They use the smaller containers from collectives such as a
pill bottle or a Ziploc bag. The standard container for storing cannabis is a quart-sized
Mason jar to protect against light, heat and air. Patients who grow their own cannabis
will grow extra and store extra in the Mason jars because they do not know how
successful each harvest will be. They might lose some of their plants and they want to
have enough for their condition. Patients commonly have scales so that they know how
to repeat a successful preparation. They will also have scales to make sure a dispensary
is not cheating them.
Defense counsel asked Morrow a hypothetical about whether the amount of
marijuana was consistent with the circumstances of defendant’s arrest and testimony
about his medical recommendation and medical history. Morrow opined that nine jars
was consistent with use for pain and not for sale. Morrow’s opinion was based on the
following: (1) the person is a qualified patient with a recommendation; (2) the person has
different types of marijuana preparations to treat pain; (3) topical and ointment
preparations will help the spasticity and muscle pain; and (4) different strains are
consistent with making the ointments.
The possession of a digital scale did not alter his opinion because the scale could
be used for a variety of things in preparing the marijuana. Morrow’s opinion was not
altered if the person had loaded guns and was 12 to 20 miles away from his residence.
Morrow did not consider the facts to be sufficient to establish that a person might be
selling marijuana.
On cross-examination, Morrow testified that he had checked Dr. Winkler’s
credentials. Dr. Winkler is a physician in good standing in the State of California. There
are good and bad physicians just like any profession. Morrow agreed with the prosecutor
that California’s marijuana laws were “a joke.” Morrow agreed that people were out on
10
the street with letters of recommendation so that when they are arrested for selling
marijuana on the street they can justify why they have the marijuana.
Morrow had a medical recommendation. He used tinctures but had not been
successful in making his own so he went to a commercial brand.
Morrow testified that Detective Bixler’s assertion that only street dealers package
marijuana in Mason jars as “incredibly inaccurate.” Selling on the street is a very high-
speed activity so the dealer wants to sell as much as possible as quickly as it could be
done. Marijuana dealers sell usable amounts in grams, eighths and ounces that are
prepackaged. Morrow testified that dealing out of a glass jar in the street “is ridiculous”
because they are big and bulky. A street dealer is not interested in storing marijuana but
is more likely to deal with baggies to hide them from law enforcement or to sell the
marijuana more quickly.
Morrow opined that nine ounces of a bud would produce a tincture that could be
used three times a day for about a month. Nine ounces used for an ointment would last a
lot longer depending on the patient’s needs. There was no case law allowing a user to
store his entire marijuana supply in the car but there was no law prohibiting him from
doing so.
V. The Prosecution’s Rebuttal
Detective Bixler testified that the Medical Marijuana Program was enacted to
further implement the Compassionate Use Act by allowing group marijuana cultivation
projects. With just a recommendation, the individual is limited to what is reasonably
related to the medical condition. Under the Medical Marijuana Program, a patient with a
recommendation can get a state-issued identification card from the county that allows an
individual to grow six mature plants or 12 immature plants or possess eight ounces of dry
manicure bud. However, there cannot be any evidence that the individual is selling the
marijuana. Individuals may not sell marijuana or have an unlimited quantity on them
under either the Compassionate Use Act or the Medical Marijuana Program.
While working undercover, Detective Bixler had obtained six or seven
recommendations with a fictitious name and address. Typically, he would go into the
11
office, meet a receptionist, fill out some paperwork, and get called into the backroom. He
might or might not see someone because there might be a monitor. He would describe an
ailment and no questions would be asked. Detective Bixler went in a couple of weeks
before the trial and got a recommendation for getting his ears pierced. He never supplied
any medical documentation or records to support his illnesses before getting the
recommendation.
Detective Bixler testified that the bud can be stored out of sunlight and in a cool
place in a closed Mason jar for a year. There is no medicinal benefit to storing it because,
if it is for medicine, the patient needs it. If a person is selling it, he or she needs to do so
for the profit. Patients should not be storing it because, if the patient stores too much, he
or she is subject to arrest.
Detective Bixler testified that most people who use marijuana smoke it to get
“high.” There is no other benefit to smoking marijuana. He explained that, generally,
people do not use the bud to make tinctures because it is too valuable. People either sell
it or smoke it because of the high concentration of THC on a bud. A person would not
use the bud to make something else. Tinctures are made from “shake,” which has THC
on it. The shake is the trim from the harvest of the marijuana. It is possible to sell all the
bud and still have part of the plant (the leaves) to make medicine. Most quality
cultivation operators take the trimmings to make the medicine and sell the buds. If a
person had nine ounces of the bud, he or she could produce between 18 to 27 quarts of
tincture, depending on the strength of the bud’s THC.
VI. Argument
During argument, the prosecutor stated that a person could not have “unlimited
marijuana” but that the amount had “to be reasonably related . . . to the defendant’s
current medical needs.” The prosecutor noted that the defendant said he had a torn
rotator cuff, knee pain and other complaints. The prosecutor then stated, “You can take
his word for it. Would have been nice to hear from a doctor about that, wouldn’t it?
’Cause a doctor can tell you what his medical condition is, what his injury really is. But
go ahead take him at his word for it. He has got to do that, if you want to.”
12
The prosecutor subsequently argued that defendant never went to the doctor
except to get the recommendations, which did not have actual dosages. The prosecutor
argued, “That is not an accident that is so you can come in to court and say however
much you got caught with is what you need, right?”
The prosecutor further argued: “[Defendant] has got a letter, right, the letter of
recommendation. But as you heard, you can go to a doctor, and if you find one to write
you for getting your ears pierced. It is a joke. It doesn’t mean he doesn’t have the letter
and not entitled to the defense, but it’s a joke. So, there is [a] doctor. I guess that is Dr.
Winkler’s signature. There is Dr. Winkler’s signature, right? And remember the
defendant when I first asked him [if] Dr. Winkler filled all this out. He said, ‘yes.’ So
then I asked him why are there two different handwritings here, you—when you see it in
person you can see that, right? This cursive, the word security, is totally different from
all the other stuff that the defendant eventually said he filled out.”
The prosecutor argued: “Does that look anything like Dr. Winkler’s signature.
This is a doctor. This is their signature. That is how he writes. This is not Dr. Winkler.
You don’t know who the defendant saw when he went and got this letter of
recommendation. But he could have been a talking head on the screen for all I know.
The defendant said he saw Dr. Winkler.”
In querying why there were two different handwritings on the recommendation,
the prosecutor argued: “Say this is Dr. Winkler, right? This is what Dr. Winkler found
important to hand notate himself about the defendant security. He worked security. That
is right. You are prescribing an illegal narcotic[] for somebody, and that is what he
decided. He had to handwrite down he worked security weightlifting. That might be
relevant how he hurt himself. Then you got this thing back here. Dx diagnosis pain
20 years, left shoulder didn’t actually circle the little thing then, rotator cuff tear.”
The prosecutor also argued: “You know, Dr. Winkler 80 years old got his medical
license in 1948. He’s frail. Looks like the [Unabomber]. Don’t hold that against me.
But you know, why is he making these recommendations? It is easy money for him at
13
this point in his life. You can probably go to him and say I want to get my ears pierced,
and I am afraid it will hurt, and he will give you a letter of recommendation.”
Defense counsel argued that defendant is a qualified marijuana patient with a valid
recommendation from a licensed physician. Defense counsel further argued: “The
recommendation that you saw and will have with you in the deliberation room. He’s a
qualified patient today and he was so at the time of this incident. He got his
recommendation a few days before this incident from a licensed physician, someone
licensed by the State of California with no administrative or disciplinary actions.
Mr. Morrow said he looked him up. What’s wrong with this doctor? Nothing. They
have not put forth any evidence to say this recommendation is not valid; that the doctor is
some whack job, right? So, instead of engaging in this name-calling and making
insinuations about this doctor’s practice, why not put forth competent evidence to show
you that this recommendation or this doctor is not who he says he is. They have the
burden of proof. They have the subpoena power of the court to subpoena that witness in.
They have the manpower of LAPD, law enforcement to bring that witness in. It’s their
burden to prove to you beyond a reasonable doubt that [defendant] was not allowed to
have this marijuana and they haven’t. Nothing says that I have to.”
In rebuttal, the prosecutor argued: “And the defendant has a letter of
recommendation. He does. So, he’s allowed to have marijuana for medicinal use. Dr.
Winkler, is he just writing the prescriptions to make money? I think the evidence
supports that. You can disagree with that. That’s fine. I’m not challenging the fact that
he has that letter for a recommendation. He has that. It still doesn’t let him sell
marijuana.”
VII. New Trial Motion
After his conviction, defendant hired new defense counsel. In a new trial motion,
defendant argued, among other things, that the prosecutor repeatedly made inflammatory
and improper comments about California’s medical marijuana laws and Dr. Winkler.
Defendant also argued that the failure to object to the improper questioning and
14
arguments resulted in ineffective assistance of counsel. Defendant also challenged
Detective Bixler’s expertise and conduct during the trial.
In denying the new trial motion, the trial court indicated that, if defense counsel
had objected to the prosecutor’s comments, the objection would not have been sustained.
The trial court ruled that the comments about Dr. Winkler were hyperbole and were
within the great latitude afforded to counsel during argument. The trial court added, “I
think the lines kind of got blurred, perhaps, about the process by which [defendant] got a
recommendation and whether he possessed this marijuana for sale.” In response to
defendant’s challenge to Detective Bixler’s competency, the trial court stated that
Detective Bixler “was a bit of a cowboy on the witness stand” but he was competent to
testify as an expert.
DISCUSSION
I. The Compassionate Use Act Defense
The Compassionate Use Act (also known as Proposition 215), which is embodied
in section 11362.5,3 was adopted by the voters in November 1996. The measure was
3 Section 11365.2 provides: “(a) This section shall be known and may be cited as
the Compassionate Use Act of 1996. [¶] (b)(1) The people of the State of California
hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as
follows: [¶] (A) 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 cancer, anorexia, AIDS, chronic
pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana
provides relief. [¶] (B) To ensure that patients and their primary caregivers who obtain
and use marijuana for medical purposes upon the recommendation of a physician are not
subject to criminal prosecution or sanction. [¶] (C) To encourage the federal and state
governments to implement a plan to provide for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana. [¶] (2) Nothing in this section
shall be construed to supersede legislation prohibiting persons from engaging in conduct
that endangers others, nor to condone the diversion of marijuana for nonmedical
purposes. [¶] (c) Notwithstanding any other provision of law, no physician in this state
shall be punished, or denied any right or privilege, for having recommended marijuana to
a patient for medical purposes. [¶] (d) Section 11357, relating to the possession of
marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a
15
enacted “[t]o ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where that medical use is deemed appropriate and has
been recommended by a physician who has determined that the person’s health would
benefit from the use of marijuana . . . .” (§ 11362.5, subd. (b)(1)(A).) Section 11362.5,
subdivision (d) provides: “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.”
The Compassionate Use Act gives partial immunity to qualified medical marijuana
patients by providing an affirmative defense to the crimes of possession and cultivation.
(People v. Kelly (2010) 47 Cal.4th 1008, 1013.) The statute does not specify the amount
of marijuana that a patient may possess or cultivate; however, the marijuana must be “for
the personal medical purposes of the patient.” (§ 11362.5, subd. (d).) The test for this
requirement is that “the quantity possessed by the patient or the primary caregiver, and
the form and manner in which it is possessed, should be reasonably related to the
patient’s current medical needs.” (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549.)
The defendant has the burden of proof to establish the facts of the defense but is only
required “to raise a reasonable doubt as to those facts rather than to prove them by a
preponderance of the evidence.” (People v. Mower (2002) 28 Cal.4th 457, 464.)
“[T]he Compassionate Use Act is a narrowly drafted statute designed to allow a
qualified patient and his or her primary caretaker to possess and cultivate marijuana for
the patient’s personal use despite the penal laws that outlaw these two acts for all others.”
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. [¶] (e) For the purposes of this section, ‘primary caregiver,’
means the individual designated by the person exempted under this section who has
consistently assumed responsibility for the housing, health, or safety of that person.”
16
(People v. Uriziceanu (2005) 132 Cal.App.4th 747, 772-773.) However, “the enactment
of the Compassionate Use Act did not alter the other statutory prohibitions related to
marijuana, including those that bar the transportation, possession for sale, and sale of
marijuana.” (Id. at p. 773.)
II. Instructional Error or Prosecutorial Misconduct
Defendant contends that he was prejudiced because the prosecutor was allowed to
make unchallenged, derogatory comments about Dr. Winkler, the physician who made
defendant’s recommendation. That, he claims, in turn misled the jury to believe it could
second-guess the recommendation.4 Defendant asserts that, once the prosecutor misled
the jury, the trial court should have given a curative instruction. Hence, defendant’s
contention is that the trial court inadequately instructed the jury regarding Dr. Winkler’s
marijuana recommendation, which defendant relied on as a defense.
According to defendant, the contention concerns instructional error because the
prosecutor “muddied the waters,” and defendant cites as applicable law the cases of
People v. Beltran (2013) 56 Cal.4th 935, 954-955, and footnote 15, People v. Morgan
(2007) 42 Cal.4th 593, 611, and People v. Milner (1988) 45 Cal.3d 227, 254-258.
However, these cases do not support defendant’s contention here. Each of these three
cases involved instructions which were either misleading or ambiguous. And the
arguments of the prosecutors gave the jurors a misleading perception, misdirected the
jury, or created an ambiguity, which the trial court needed to rectify.
The trial court here correctly instructed the jury regarding the defendant’s
compassionate use defense as follows: “Possession of marijuana is lawful, if authorized
by the Compassionate Use Act, what people have called the CUA. The Compassionate
Use Act allows a person to possess marijuana for personal, medical purposes when a
4 At the hearing on the new trial motion, the trial court stated that if defense counsel
had objected to the prosecutor’s comments, the court would have overruled the objection.
The Attorney General does not dispute defendant’s contention that the issues related to
the comments have been preserved on appeal because of the trial court’s statement at the
new trial motion that an objection would have been futile.
17
physician has recommended or approved such use. The amount of marijuana possessed
must be reasonably related to the patient’s current medical needs. The People have the
burden of proving beyond a reasonable doubt that the defendant was not authorized to
possess marijuana for medical purposes. If the People have not met this burden, you
must find the defendant not guilty of this crime.”5
In People v. Spark (2004) 121 Cal.App.4th 259 (Spark), the trial court erroneously
instructed the jury that one of the elements of the Compassionate Use Act defense was
that the defendant had to be ‘“seriously ill.”’ (Spark, at pp. 262, 268-269.) The appellate
court concluded that the voters “did not intend to limit the compassionate use defense to
those patients deemed by a jury to be ‘seriously ill.’” (Id. at p. 268.) As a result, “the
question of whether the medical use of marijuana is appropriate for a patient’s illness is a
determination to be made by a physician. A physician’s determination on this medical
issue is not to be second-guessed by jurors who might not deem the patient’s condition to
be sufficiently ‘serious.’” (Ibid.) Spark concluded that the instructional error was
prejudicial when coupled with counsels’ (prosecution and defense) arguments that the
jury was required to determine whether the defendant had to be seriously ill to qualify for
the medical use of marijuana. (Id. at p. 269.)
In this case, unlike in Spark, the trial court included no erroneous language and
correctly instructed the jury regarding the compassionate use defense. Defendant does
not contend otherwise. We therefore find no instructional error. We are left with solely
the question whether the prosecutor committed misconduct or misdirected the jury.
III. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct that misled the jury
to second-guess the determination that defendant had a valid medical recommendation.
Defendant asserts that the prosecutor disparaged Dr. Winkler’s assessment of defendant’s
marijuana recommendation as in Spark, supra, 121 Cal.App.4th 259. But, in Spark, it
5 The words in italics were added by the trial court in the court’s oral reading of the
instructions.
18
was a combination of the prosecutor’s argument and an incorrect instruction about the
marijuana Compassionate Use Act that enabled the jury to second-guess the marijuana
recommendation. Here, there was no instructional error, and, as we determine, no
prosecutorial misconduct.
The Court of Appeal in Spark did not consider nor did it hold that a prosecutor
could not comment on the evidence of the marijuana recommendation. The prejudicial
arguments in Spark were made by the prosecutor and defense counsel after the trial court
erroneously instructed the jury that “serious illness” was an element of the compassionate
use defense. By contrast, in this case during argument, the prosecutor did not ask the jury
to determine that defendant had no medical condition that would permit him to use the
marijuana. The prosecutor made a number of comments about the medical
recommendation. However, those comments included concessions that defendant had a
recommendation and was entitled to use marijuana for his condition.
Furthermore, the issue framed at trial was whether, based on the recommendation,
defendant needed nine ounces of marijuana or whether that amount was reasonable. As
the prosecutor stated, whether defendant had a recommendation or not, he could not
legally sell marijuana.
The expert evidence and defendant’s testimony on the amount, storage, cultivation
time and percentage of marijuana needed to make tinctures was extensive and conflicting
in many ways. This included testimony that defendant had nine ounces of marijuana in
labeled Mason jars in the back of a Jeep, with loaded weapons. He had the nine jars in
the parking lot of a strip mall, four days after he obtained a “second” recommendation.
The prosecutor’s argument centered on whether or not the evidence showed that the
amount of marijuana in defendant’s possession at the time of his arrest was reasonably
related to defendant’s current medical needs. The prosecutor’s argument on this issue
was fair even if it was aggressive. A prosecutor is given wide latitude in argument to
vigorously advocate the case and to make fair comment on the evidence. (People v.
Stanley (2006) 39 Cal.4th 913, 951.) Thus, we disagree with defendant that comments
19
about the recommendation were either unfair or somehow invited the jury to second-
guess the determination that he needed medical marijuana.
The prosecutor did make, as defendant notes, some unflattering comments about
Dr. Winkler. The prosecutor disparaged both the recommendation process in California
(“it’s a joke”) and Dr. Winkler (saying he resembled the Unabomber).
“‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it
comprises a pattern of conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.’”’’ (People v. Gionis (1995) 9 Cal.4th
1196, 1214.) A prosecutor’s conduct can render a criminal trial fundamentally unfair
under state law if the prosecutor uses deceptive or reprehensible methods to attempt to
persuade the jury or the court. (People v. Hill, supra, 17 Cal.4th at p. 819.) However, “‘a
prosecutor is given wide latitude during argument. The argument may be vigorous as
long as it amounts to fair comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel
during summation may state matters not in evidence, but which are common knowledge
or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A
prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian
politeness”’ [citation], and he may “use appropriate epithets warranted by the evidence.”’
[Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 567-568.) A claim of
prosecutorial misconduct is reviewed to determine whether there was a reasonable
likelihood the jury considered the remarks in an objectionable manner. (People v. Ayala
(2000) 23 Cal.4th 225, 284.) We examine the specific arguments that defendant finds
objectionable.
Defendant claims that the prosecutor’s argument improperly denigrated
Dr. Winkler’s assessment and the validity of the recommendation. Defendant cites the
following argument of the prosecutor: “This is what Dr. Winkler found important to
hand-notate himself about the defendant, security. He worked security. That is right.
You are prescribing an illegal narcotic[] for somebody, and that is what he decided. He
had to handwrite down he worked security weightlifting. That might be relevant how he
20
hurt himself. Then you got this thing back here. Dx diagnosis pain 20 years, left
shoulder didn’t actually circle the little thing then, rotator cuff tear.” The prosecutor
repeatedly reminded the jury that he was not questioning whether or not defendant had a
condition for which the recommendation was needed. Rather, he argued that the amount
of marijuana in defendant’s possession was not reasonable to meet his current medical
needs. Under the circumstances, we are not persuaded that the comments erroneously
allowed the jury to make a determination that defendant did not need medical marijuana.
The trial court properly instructed the jury on the compassionate use defense based on the
evidence and also instructed that the prosecutor’s comments were not evidence. The
record does not support the claim that defense counsel was ineffective for failing to
object to this argument.
Defendant also claims the prosecutor invited the jury to question Dr. Winkler’s
medical credentials, his mental capacity and whether the medical assessment was a ploy
to make money. Defendant cites this argument: “You know, Dr. Winkler 80 years old
got his medical license in 1948. He’s frail. Looks like the [Unabomber]. Don’t hold that
against me. But you know, why is he making these recommendations? It is easy money
for him at this point in his life. You can probably go to him and say I want to get my ears
pierced, and I am afraid it will hurt, and he will give you a letter of recommendation.”
The trial court commented that the jury in all likelihood recognized the prosecutor’s
comments as hyperbole. We agree with the trial court.
In any event, during the trial, both prosecution and defense experts testified that
there is often laxity when a recommendation is made. The defense expert testified that
the marijuana laws were a joke. Detective Bixler testified that he had obtained a
recommendation by stating that he was going to get his ears pierced. In light of this
evidence, it was not beyond the pale for the prosecutor to comment about the ease by
which recommendations are made.
In sum, we cannot conclude the prosecutor’s statements were ‘““so egregious””’
that they infected the trial with such unfairness that defendant’s conviction resulted in a
denial of due process. (People v. Gionis, supra, 9 Cal.4th at p. 1214.) Moreover, we
21
conclude that none of the charged instances amount to misconduct and, if one or more of
the prosecutor’s statements was arguably misconduct, it was harmless in light of the
evidence of defendant’s guilt. (People v. Hardy (1992) 2 Cal.4th 86, 173.) None of the
statements together or alone resulted in an unfair violation of either defendant’s state of
federal constitutional rights.
III. Ineffective Assistance of Counsel
Defendant contends that defense counsel’s failure to object to the prosecutor’s
conduct constituted ineffective assistance of counsel. We disagree.
Even if a reasonable juror might have taken to heart the argument about
Dr. Winkler’s credentials, the record does not support the contention that counsel
provided ineffective assistance by failing to object. Indeed, defense counsel presented
evidence that Dr. Winkler was a doctor in good standing in the State of California. In
argument, defense counsel vigorously asserted that the prosecution’s comments about
Dr. Winkler should be ignored. We cannot conclude that defense counsel was remiss in
failing to object based on the record on appeal.
Defendant finds objectionable the prosecutor’s comment made after defense
counsel’s argument. The prosecutor stated: “Dr. Winkler, is he just writing the
prescriptions to make money? I think the evidence supports that.” The prosecutor’s
comment was fleeting at most and, as defendant concedes, the prosecutor immediately
told the jury that it was free to disagree with him. The prosecutor then stated that he was
not challenging the recommendation but that it did not permit defendant to sell marijuana.
Because the remark was brief and fleeting, even if counsel had objected or the remark
was in fact misconduct, such could not possibly have prejudiced defendant.
For those reasons, relief is also not warranted in this appeal on the theory of
ineffective counsel because of defense counsel’s failure to object to comments about
Dr. Winkler’s recommendation.
Defendant also contends he was denied effective assistance of counsel because
defense counsel failed to object to the prosecutor’s rebuttal argument on reasonable
doubt. “A defendant is presumed innocent until proven guilty, and the government has
22
the burden to prove guilt, beyond a reasonable doubt, as to each element of each charged
offense. [Citations.]” (People v. Booker (2011) 51 Cal.4th 141, 184-185.) Defendant
claims that the prosecutor’s argument undermined the People’s burden of proof. We
disagree.
Defense counsel argued on the meaning of an “abiding conviction.” He argued:
“If you were to look those words up in the dictionary, ‘abiding’ means long lasting.
‘Conviction’ means a belief. If you reinsert that definition into that sentence, you would
get my interpretation of what proof beyond a reasonable doubt is. Proof beyond a
reasonable doubt is proof that leaves you with a long lasting belief that these charges are
true. That belief has to be so long lasting that when you think about how much you’ve
enjoyed your stay here in Department 131 on this trial, sometime in the future, whether it
be next week, next month, sometime down the line, when you think about your decision
in this case, you’re not going to question. But if there’s a question on whether or not
they’ve proven this case to you, that’s not enough. It’s maybe possibly, just like we
talked about in jury selection, it’s not enough. You have to have a long lasting belief.”
In rebuttal, the prosecutor argued: “Proof beyond a reasonable doubt. That’s what
the standard is that you judge everything by during this case. Reasonable doubt, what
does that mean? Do you have a doubt? You take a look at it. You examine it. Is that
doubt reasonable? Okay. Not guilty. But if that doubt is a possibility, might have been,
could have been, well I just can’t be too sure, so I’m not going to take a chance, that’s not
reasonable doubt. Reasonable doubt, I don’t have to eliminate all possible doubt, because
everything in life is open to some possible or imaginary doubt. You don’t have to
imagine that. You can. Actually, defense attorneys when they talk to you about beyond
a reasonable doubt, they seize on that abiding conviction language. What does that
mean? In reality that means that you find the defendant is guilty. Defense attorneys
want—want you to think it’s an impossible standard. It can never be met, when in reality
people are convicted of crimes Monday through Friday in courthouses throughout this
country with this standard. It’s beyond a reasonable doubt, not beyond all possible
doubt.”
23
The prosecutor further argued: “Defense attorneys want you to think in a week
oh, no. You’re going to think about something else and regret it in a month, 10 years,
when you’re on your death bed and think about this case and say, you know what? I
didn’t have an abiding conviction. There’s no way, if you go by that standard, could you
ever find somebody guilty and that’s not the standard. It’s do you have a doubt. All
right. Look, if it’s reasonable, yes. Okay, not guilty, but if it’s not reasonable, right, if
it’s possible, maybe, could have, that is not beyond a reasonable doubt. That means
guilty. So, when you’re back there and you’re talking to each other and you all will talk
about things, you will talk about all of this stuff. You will talk about things that are
possible and might have been, could have been as you sort through the facts and
evidence. That is perfectly fine. You should do that, but when somebody goes down the
well, you know what, it’s possible. It happened this way, so I’m voting not guilty. It’s
the rest of yours’ [sic] job to remind them, well, yeah. It’s possible, but it is not
reasonable based on the facts and the evidence.”
According to defendant, defense counsel should have objected to the prosecutor’s
argument that a doubt is not reasonable if it amounts to a mere possibility of innocence or
if defendant could have been innocent. Even if error is assumed by these statements, we
could not find prejudice under the circumstances of this case.
To begin with, the statements that defendant finds objectionable appear to be taken
out of context of the argument in which they were stated. More importantly, the trial
court instructed the jury with CALCRIM No. 220 on the presumption of innocence and
the prosecution’s burden to prove defendant guilty beyond a reasonable doubt. The jury
was instructed that: “Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true. The evidence need not eliminate all possible
doubt because everything in life is open to some possible of imaginary doubt.” The trial
court gave CALCRIM No. 359, which instructed the jury that “You may not convict the
defendant unless the People have proved his guilt beyond a reasonable doubt.”
24
The trial court instructed the jury with CALCRIM No. 222 that “Nothing that the
attorneys say is evidence. In their opening statements and closing arguments, the
attorneys discuss the case, but their remarks are not evidence.”
The jury was instructed on the elements of possession for sale of marijuana
(§§ 11018, 11359) and the lesser included offense of simple possession (§ 11357,
subd. (c)).
In accordance with defendant’s compassionate use defense, the trial court
instructed that: “The People have the burden of proving beyond a reasonable doubt that
the defendant was not authorized to possess marijuana for medical purposes. If the
People have not met this burden, you must find the defendant not guilty of this crime.”
In addition to the trial court’s instructions on the prosecution’s burden of proof,
both the prosecutor and defense counsel emphasized that the prosecutor had the burden of
proof on the issues at trial. Defense counsel stressed that defendant had no burden of
proof on the issue of guilt. Under the circumstances, we cannot conclude that the
prosecutor’s reasonable doubt argument requires reversal or that defense counsel was
ineffective in representing defendant. In any event, it is not reasonably probable that the
prosecutor’s statements contributed to the verdict given the overwhelming evidence of
defendant’s guilt.
IV. Cumulative Error
Defendant claims that the judgment must be reversed because of numerous errors
by the trial court, the prosecutor and defense counsel. We have found no prejudicial
errors. Accordingly, we must affirm the judgment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J. HOFFSTADT, J.
25