Opinion
B226753
10-19-2011
THE PEOPLE, Plaintiff and Appellant, v. JAMES FLEMING, Defendant and Respondent.
Steve Cooley, District Attorney, Phyllis Asayama and Cassandra Hart, Deputy District Attorneys, for Plaintiff and Appellant. Margolin & Lawrence, Allison B. Margolin and J. Raza Lawrence for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA063266)
APPEAL from a judgment of the Superior Court of Los Angeles County, Barry A. Taylor, Judge. Reversed.
Steve Cooley, District Attorney, Phyllis Asayama and Cassandra Hart, Deputy District Attorneys, for Plaintiff and Appellant.
Margolin & Lawrence, Allison B. Margolin and J. Raza Lawrence for Defendant and Respondent.
The People of the State of California charged respondent James Fleming with one count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and one count of possession of marijuana for sale (Health & Saf. Code, § 11359). Respondent moved to set aside the information pursuant to Penal Code section 995, based on the affirmative defense of the Compassionate Use Act of 1996 (CUA) (§ 11362.5) and the Medical Marijuana Program Act (MMP) (§ 11362.7 et seq.). The trial court granted the motion and dismissed the case, and the People now appeal. We conclude that the trial court erred in granting the motion because the information was supported by probable cause. We therefore reverse.
Any undesignated statutory references are to the Health and Safety Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the preliminary hearing transcript.
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Prosecution Evidence
On September 17, 2009, Los Angeles Police Department Detective Edmund Russell was monitoring a medical marijuana dispensary in Los Angeles County. He saw respondent leave the dispensary carrying a large duffel bag.
After respondent drove away in a pickup truck, officers followed him and stopped him when he failed to use his turn signal while pulling to the curb. According to Detective Russell, respondent consented to a search in which officers found a canister of marijuana on his person. Respondent was arrested for possession of less than one ounce of marijuana, in violation of section 11357, subdivision (b). When officers searched his car, they found the duffel bag, which contained approximately five pounds of marijuana.
Detective Russell interviewed respondent at the police station. Respondent told Detective Russell that he worked for Edward Torres, the owner of a medical marijuana dispensary named Grateful Meds. Respondent's responsibilities were to grow marijuana and take it to dispensaries that were part of a marijuana co-op or collective. When respondent delivered the marijuana, he informed the other dispensaries that the marijuana cost $4,200 per pound, and Torres picked up the payment later. In exchange for his work, Grateful Meds paid respondent's rent and bills and supplied him with food and cigarettes. Respondent was growing 35 marijuana plants at his house and had harvested five pounds of marijuana on the day of his arrest. Detective Russell testified that he "eventually" obtained respondent's medical marijuana recommendation form and determined that it was valid.
Defense Evidence
Respondent testified that, on the date of his arrest, he had gone to the Westwood Organics dispensary to buy some medical marijuana for his personal use. He denied Detective Russell's account that he left the dispensary carrying the duffel bag in which marijuana was later discovered.
According to respondent, Detective Russell approached and asked him to step onto the sidewalk, where he identified himself as a police officer. Detective Russell patted him down and removed a jar containing three to four grams of marijuana from his pocket. Respondent denied giving his consent to the search. Detective Russell then placed respondent under arrest and searched his car. Respondent had a medical recommendation form from a doctor that he needed to show when he first became a member of the marijuana co-op.
Respondent testified that none of the marijuana seized from the duffel bag discovered in his car was intended for sales to nonpatients and that he did not sell marijuana before becoming involved with Grateful Meds. He was distributing his marijuana to three different co-ops at the time of his arrest: Grateful Meds, Caregivers Earth Ordinance, and H.A.I. He did not have a personal relationship with any patients at any of the co-ops.
Respondent grew the marijuana in his house, which he rented for $1,500 per month. He spent 20 to 25 hours a week cultivating the marijuana and described the cultivation and distribution of marijuana as his full-time job. Grateful Meds and Caregivers Earth Ordinance spent about $10,000 to buy the equipment for respondent to grow the marijuana, and they paid all of respondent's living expenses and supplied him with food. They also provided respondent with $200 per month, which he used to buy himself cigarettes. Respondent did not have a written agreement with the owners of the dispensaries regarding his responsibilities and expenses.
Procedural Background
Respondent was charged with transportation of marijuana and possession of marijuana for sale. Defense counsel sought dismissal of the charges at the preliminary hearing, arguing that qualified medical marijuana patients and caregivers are allowed to cultivate marijuana collectively pursuant to section 11362.775. The magistrate expressed concern about the lack of evidence, other than respondent's own testimony, that the marijuana collectives were valid collectives, noting that there was no documentation from the Secretary of State or any other state licensing body to indicate that they were valid. In addition, the magistrate found that respondent clearly was making profit from the marijuana sales and was not a primary caregiver for purposes of the statute. The magistrate thus found sufficient cause to believe respondent committed the offenses, denied the motion to dismiss the charges, and ordered that respondent be held to answer.
Respondent was charged by information with one count of transportation of marijuana (§ 11360, subd. (a)), and one count of possession of marijuana for sale (§ 11359). He pled not guilty to both counts and filed a motion to set aside the information under Penal Code section 995 and to dismiss the charges. Respondent again asserted a medical marijuana affirmative defense pursuant to section 11362.775.
After holding a hearing on June 11, 2010, the court granted respondent's motion and dismissed the case. The People filed a timely notice of appeal.
DISCUSSION
"Penal Code section 995 allows a defendant to challenge an information based on the sufficiency of the record made before the magistrate at the preliminary hearing. [Citation.]" (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071-1072 (Lexin).) "When we review a [Penal Code] section 995 motion, we 'disregard[] the ruling of the superior court and directly review[] the determination of the magistrate.' [Citations.] We conduct an independent review of the evidence, but will not substitute our judgment for that of the magistrate as to the credibility or weight of the evidence. [Citation.] We will not set aside an information 'if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' [Citation.]" (People v. San Nicolas (2004) 34 Cal.4th 614, 654 (San Nicolas).) "[W]e must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt' [citations]." (Lexin, supra, 47 Cal.4th at p. 1072.)
"The Compassionate Use Act of 1996 (the CUA) ensures that Californians who obtain and use marijuana for specified medical purposes upon the recommendation of a physician are not subject to certain criminal sanctions. (Health & Saf. Code, § 11362.5.) Specifically, the CUA provides an affirmative defense to the crimes of possessing marijuana (§ 11357) and cultivating marijuana (§ 11358) for physician-approved personal medical purposes. (§ 11362.5, subd. (d).)" (People v. Wright (2006) 40 Cal.4th 81, 84 (Wright), fn. omitted.)
The Legislature enacted the MMP in 2003 to address issues not included in the CUA. (Wright, supra, 40 Cal.4th at p. 85; People v. Hochanadel (2009) 176 Cal.App.4th 997, 1007 (Hochanadel).) The MMP was intended, in part, to "'[c]larify 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,'" and to "'[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.'" (Hochanadel, supra, at pp. 1007-1008, italics omitted.)
In People v. Mower (2002) 28 Cal.4th 457, the California Supreme Court explained that, "[b]ecause the grant of limited immunity from prosecution in section 11362.5(d) operates by decriminalizing conduct that otherwise would be criminal, a defendant moving to set aside an indictment or information prior to trial based on his or her status as a qualified patient or primary caregiver may proceed under Penal Code section 995. To prevail, a defendant must show that, in light of the evidence presented to the . . . magistrate, he or she was indicted or committed 'without reasonable or probable cause' to believe that he or she was guilty of possession or cultivation of marijuana in view of his or her status as a qualified patient or primary caregiver. [Citation.] '"'Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. 'Reasonable and probable cause' may exist although there may be some room for doubt."' [Citation.]" (Id. at p. 473, fn. omitted.)
Respondent's motion to set aside the information relied on section 11362.775, which concerns medical marijuana collectives or cooperatives. The statute 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, 11358, 11359, 11360, 11366, 11366.5, or 11570." (§ 11362.775.)
Respondent contends, as he did in the trial court, that recent medical marijuana cases, particularly People v. Urziceanu (2005) 132 Cal.App.4th 747 (Urziceanu) and Hochanadel, are dispositive of his case. Urziceanu is distinguishable on both factual and procedural grounds. However, the procedural posture of Hochanadel is analogous to the instant case and informs our analysis.
In Urziceanu, the defendant raised the CUA as a defense to marijuana charges and was acquitted of cultivating marijuana and sale of marijuana, but convicted of conspiracy to sell marijuana. He presented a considerable amount of evidence to establish that the marijuana dispensary he opened was a collective, such as the procedures he followed in order to ensure the dispensary complied with the law, expert testimony about medical marijuana, and the testimony of a number of people who contributed to and participated in the marijuana collective. The MMP, with its provision regarding such collectives, was passed after the events constituting the offense.
On appeal, the court held that the MMP applied retroactively to the defendant's conduct and that the defendant had produced substantial evidence suggesting that his marijuana dispensary was part of a collective for purposes of section 11362.775. (Urziceanu, supra, 132 Cal.App.4th at pp. 782-786.) The court therefore remanded for a new trial on the issue whether his collective fell within the parameters of section 11362.775. (Id. at p. 786.)
Respondent contends that, similar to Urziceanu, there is substantial evidence that his conduct fell within the purview of section 11362.775. However, respondent failed to present the type of extensive evidence presented in Urziceanu to support a finding that he was part of a marijuana collective. In any event, Urziceanu did not involve review of a dismissal under Penal Code section 995. As we have explained, our role here is simply to determine whether, drawing all inferences in favor of the information, there is probable cause to believe that respondent is guilty of the charged offenses.
On this issue, Hochanadel is more on point. There, the trial court quashed a search warrant for a medical marijuana dispensary and dismissed the charges against the defendants. In granting the motion to quash, the trial court found that the dispensary was a valid primary caregiver for purposes of the CUA. The court relied on evidence presented at the preliminary hearing that the dispensary "operated in the open, in compliance with city and state regulations, and only sold to persons holding legitimate medical marijuana cards." (Hochanadel, supra, 176 Cal.App.4th at p. 1006.)
On appeal, the court held that the trial court erred in quashing the search warrant and dismissing the charges. (Hochanadel, supra, 176 Cal.App.4th at p. 1014.) The court reasoned that the probable cause necessary for a search warrant was "'whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.' [Citation.]" (Id. at pp. 1014-1015.) The court acknowledged that marijuana dispensaries "that qualify as true cooperatives or collectives may be immune from prosecution" pursuant to section 11362.775, but found that the facts contained in the search warrant provided probable cause that the defendants were engaged in criminal activity. (Id. at p. 1014.) The court distinguished Urziceanu on the basis that "we are not charged with determining whether the facts are sufficient to allow defendants to raise section 11362.775 as a defense at trial. Rather, we must determine if the facts stated in [the detective's] search warrant affidavit gave probable cause to believe defendants were not operating within the confines of the CUA and [MMP]." (Id. at p. 1017.)
Although the instant appeal is not from the grant of a motion to quash a search warrant, the standard of probable cause for the issuance of a search warrant is "equivalent in meaning" to the sufficient cause standard we apply in reviewing the grant of a motion under section Penal Code section 995. (People v. Aday (1964) 226 Cal.App.2d 520, 532 (Aday); see also People v. Luros (1971) 4 Cal.3d 84, 89, fn. 5 [stating that "[t]he concept of probable cause is approximately the same whether it is applied to determine the legality of a search warrant, or of an arrest without a warrant, or of a felony accusation," citing Aday, supra, at pp. 532-533].) Thus, similar to Hochanadel, our task on appeal is not to determine whether the facts are sufficient to allow respondent to raise section 11362.775 as a defense at trial, but only to determine "whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt' [citations]." (Lexin, supra, 47 Cal.4th at p. 1072.) We conclude that this standard has been satisfied and that the trial court accordingly erred in setting aside the information and dismissing the matter.
The role of the magistrate is to determine whether there is sufficient cause to believe the defendant is guilty of a public offense. (Pen. Code, §§ 871, 872; People v. Uhlemann (1973) 9 Cal.3d 662, 667 (Uhlemann).) This test "'is not identical with the test which controls a jury . . . . The jury must be convinced ... beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] In other words, "Evidence that will justify a prosecution need not be sufficient to support a conviction. . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]"' [¶] Within the framework of his limited role, [fn. omitted] however, the magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses [citation]." (Uhlemann, supra, 9 Cal.3d at p. 667.)
Here, the People presented evidence at the preliminary hearing that respondent exited a marijuana dispensary with a duffel bag subsequently found to contain five pounds of marijuana and drove away with it. The evidence also showed that respondent was carrying a canister with less than one ounce of marijuana in it. It is true that Detective Russell testified that he later saw respondent's medical marijuana recommendation form and determined that it was valid. But other than respondent's testimony, there was no evidence that, as required by section 11362.775, respondent associated with Grateful Meds or any other cooperative in order "collectively or cooperatively to cultivate marijuana for medical purposes," nor was there any evidence that any of the dispensaries mentioned by respondent were qualified under the relevant statutes. In holding respondent to answer to the charges, the magistrate weighed respondent's testimony and "[withheld] credence to [it]," a finding in keeping with "the framework of [the magistrate's] limited role" in determining whether the information was supported by probable cause. (Uhlemann, supra, 9 Cal.3d at p. 667.)
We are not to "substitute our judgment for that of the magistrate as to the credibility or weight of the evidence. [Citation.]" (San Nicolas, supra, 34 Cal.4th at p. 654.) Drawing, as we must, "all reasonable inferences in favor of the information" (Lexin, supra, 47 Cal.4th at p. 1072), we conclude that the evidence supports a finding that there is a "'rational ground for assuming the possibility'" that respondent committed the offenses charged in the information of transportation of marijuana and possession of marijuana for sale. (San Nicolas, supra, 34 Cal.4th at p. 654.) The trial court erred in dismissing the information. (Ibid.)
DISPOSITION
The order of the superior court granting the motion to set aside the information pursuant to Penal Code section 995 and dismissing the matter is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.