Opinion
C050852
5-9-2007
THE PEOPLE, Plaintiff and Respondent, v. ROSS BRENTON HALEY, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Ross Brenton Haley of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and speed exhibition. (Veh. Code, § 23109, subd. (c).) The trial court suspended imposition of sentence, placed him on probation for three years, and ordered that he serve 30 days in the county jail.
All further section references are to the Health and Safety Code unless otherwise specified.
Defendant was found not guilty of driving while having a blood alcohol level of 0.08 percent or higher. (Veh. Code, § 23152, subd. (b).)
The court ordered that defendant serve 150 days in the county jail, but stayed service of 120 days of that time.
The issues raised on appeal relate solely to the medical marijuana defense defendant raised to the charge of transporting marijuana. (§ 11360.) He claims section 11362.77 is an unconstitutional amendment of an initiative statute and is violative of the equal protection clause, the trial courts refusal to consider relevant legislative history in construing section 11362.77 resulted in instructional error, and the trial court erred by excluding defense evidence as inadmissible hearsay.
During oral argument, defense counsel raised an additional evidentiary claim for the first time on appeal. She argued that the trial court erroneously excluded the doctors testimony relating to whether the amount of marijuana defendant was transporting (13 1/2 ounces) was necessary to meet his then current medical needs. Because this argument was not raised in a timely manner, we decline to address it. (People v. Pena (2004) 32 Cal.4th 389, 403 [an appellate court is not required to consider any point made for the first time at oral argument].)
We find no prejudicial error and shall affirm the judgment.
FACTUAL BACKGROUND
Because the issues raised on appeal relate solely to defendants conviction for transportation of marijuana and the related medical marijuana defense, we have limited our statement of the facts to those matters.
On March 12, 2004 at approximately 1:48 a.m., defendant was driving on Douglas Boulevard in Roseville when he was pulled over by Police Officer Darin DeFreece after DeFreece observed defendant and another driver accelerating at a fast rate of speed and concluded they were racing. When Officer DeFreece contacted defendant, he noticed defendant appeared intoxicated. After conducting the necessary investigation and tests, Officer DeFreece arrested defendant for driving under the influence of alcohol and transported him to the police station.
Defendants car was towed to the police station. During an inventory search of the car, Officer Wernli found in the trunk of the car, a grocery bag containing 387.53 grams of marijuana, which is equivalent to about 13 and one-half ounces.
Defendant testified on his own behalf and presented a medical marijuana defense. According to defendant, in July 2001, he was hiking and fell off a sheer cliff, plummeting approximately 30 feet before landing on the rocks below. He shattered numerous bones, lost all his teeth, and sustained two skull fractures and a herniated disc in his lower back. As a result of his injuries, he suffered severe and chronic pain which was not relieved by traditional prescription pain killers.
On May 15, 2003, defendant saw Dr. William Toy for his chronic pain. After examining him, Dr. Toy determined that defendant had a medical condition that would benefit from using medical marijuana for pain relief. He gave defendant a letter giving him a one-year recommendation to use one-half to three-quarters of an ounce of marijuana per week, to be renewed in one year.
Defendant began using marijuana pursuant to Dr. Toys recommendation and on February 2004, he purchased one pound of medical marijuana from a dispensary in Oakland, thinking it would last until his next appointment with Dr. Toy on May 15, 2004.
After purchasing the marijuana, defendant drove to his mothers house near Yuba City for a family get-together. Afterwards, he gave his young nephews a ride home and did not want to get arrested for unlawful transportation, so he took three and one-half ounces of the substance with him and left the rest of it at his mothers house. He ran out of marijuana about three weeks later but was unable to return to his mothers house at that time, so he took Vicodin during that period to relieve his pain. Defendant drove to his mothers home to pick up the rest of the marijuana the evening of March 11, 2004. He was on his way home from her house when he was arrested by Officer DeFreece.
DISCUSSION
I
Constitutional Claims
Defendant contends section 11362.77, a legislative enactment that places limits on the amount of marijuana a qualified patient may possess for personal medical use, is unconstitutional because it (1) constitutes an invalid amendment of an initiative measure without voter approval (Cal. Const., art. II, § 10, subd. (c)) and (2) violates the equal protection clause of the state and federal constitutions by authorizing counties and cities to enact medical marijuana guidelines that exceed state limits. (§ 11362.77, subd. (c).) With scant analysis, respondent contends this court should not reach the merits of the constitutional claims because resolution of them is not necessary to dispose of the matter and no prejudice resulted from the trial courts instructions to the jury.
We agree with respondent that we need not reach the constitutional claims. An appellate court will not reach constitutional questions unless absolutely required to do so to dispose of the matter before it. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66.)
In raising his constitutional claims, defendant has turned two evidentiary claims on end, overlooking the fact the trial courts rulings on the evidence were proper and therefore no prejudice resulted from its rulings rejecting defendants constitutional claims. Consequently, because resolution of his evidentiary claims do not require resolution of the constitutional claims, we decline to reach the merits of the later claims.
A. Procedural Background
The prosecution moved in limine to exclude, inter alia, any evidence that defendant had a medical marijuana recommendation or any defense under the Compassionate Use Act (CUA), any evidence of marijuana possession standards adopted by other local jurisdictions, and all testimony by non-medical experts that defendant possessed the marijuana for medicinal use. The motion listed Christopher Conrad as an expert on medical marijuana issues and argued his testimony would be irrelevant. The basis for the prosecutions motion was that defendant was transporting an amount in excess of the limit allowed by section 11362.77, subdivision (a) and in excess of his medical needs and was therefore barred from raising a CUA defense. Defendant opposed the motion, and with respect to admission of the marijuana possession standards and the marijuana expert testimony, he argued the evidence was relevant to establish his medical needs.
The trial court denied the motion as to the medical marijuana recommendation and the CUA defense upon its finding defendant had presented sufficient evidence to establish a possibility of raising a reasonable doubt as to the illegality of the transportation. It granted the motion in part by excluding evidence of the marijuana possession standards of other jurisdictions and conditionally excluding the testimony of Chris Conrad unless a proper foundation was laid for an expert witness.
B. Expert Testimony
We first dispose of defendants claim relating to the exclusion of Chris Conrads expert testimony. The proponent of expert testimony must first establish that the witness is qualified to testify as an expert. (Evid. Code, § 720; People v. Wilds (1995) 48 Cal.App.4th 1740, 1747.) Here the trial court did not exclude Conrads testimony pursuant to section 11362.77. It merely ruled his testimony was subject to proper qualification. Since defendant never attempted to lay a foundation for Conrads testimony as an expert on marijuana, he has forfeited his claim of error.
In his supplemental reply brief, defendant indicates that if allowed to testify, Conrad would have testified about the different strains of marijuana, the potency of different strains and storage methods, as well as the amounts of marijuana used in different methods of ingesting.
C. Evidence of the Marijuana Standards in Other Counties
We also reject defendants claim of error relating to exclusion of the marijuana standards in other counties. The trial court excluded this evidence under Evidence Code section 352, finding that it was irrelevant and would be more prejudicial than probative and would be time consuming and confusing to the jury.
The trial court has broad discretion under Evidence Code section 352 when determining whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodriguez (1994) 8 Cal.4th 1060, 1124.) The trial courts ruling under Evidence Code section 352 will not be overturned in the absence of "`a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (Id. at pp. 1124-1125.) We find no such abuse because the evidence had no relevancy under the circumstances of this case.
Only relevant evidence is admissible (Evid. Code, § 350) and evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Because defendant essentially claims the evidence was erroneously excluded under the CUA, we shall consider its relevancy under that act. The CUA, an initiative measure adopted by the voters at the General Election on November 5, 1996, is codified in section 11362.5 of the Health and Safety Code. Subdivision (d) of that section provides that "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patients 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." (Italics added.)
The CUA provides a defense for physician-approved possession and cultivation of marijuana. (People v. Wright (2006) 40 Cal.4th 81, 90 (Wright).) It operates to grant limited immunity from prosecution by allowing a defendant to raise his or her status as a qualified patient or primary caregiver in a motion to set aside an indictment or information under Penal Code section 995. (People v. Mower (2002) 28 Cal.4th 457, 464, 473.) The CUA also permits a defendant to raise his or her qualified individual status as a defense at trial by presenting sufficient evidence to raise a reasonable doubt as to the facts underlying the medical marijuana defense. (Id. at pp. 464, 481.)
Because the CUA does not expressly provide a defense to the offense of transporting marijuana (§ 11360; Wright, supra, 40 Cal.4th at p. 90), two appellate courts have addressed the issue. In People v. Trippet (1997) 56 Cal.App.4th 1532 (Trippet), the court found that as a general matter, the protections of Proposition 215 do not extend to the crime of transporting marijuana. (Id. at p. 1550.) Nevertheless, the court found that "practical realities dictate that there be some leeway in applying section 11360 [transportation of marijuana] in cases where a Proposition 215 defense is asserted to companion charges. The results might otherwise be absurd." (Ibid.) The court therefore held that there should be an implied defense to a section 11360 charge where "the quantity transported and the method, timing and distance of the transportation are reasonably related to the patients current medical needs." (56 Cal.App.4th at pp. 1550-1551.)
By contrast, the court in People v. Young (2001) 92 Cal.App.4th 229 (Young), found the plain language of the statute did not provide an implied defense to a charge of transporting marijuana in a vehicle. (Id. at p. 237.)
While these two cases were pending before the Supreme Court, the Legislature enacted the Medical Marijuana Program (MMP), which added Article 2.5 (commending with Section 11362.7) to Chapter 6 of Division 10. (Stats. 2003, ch. 875 (S.B. 420), § 2.) In so doing, the Legislature extended the CUA defense to a charge of transporting marijuana under specified conditions (§ 11362.765 et seq.) and rendered moot the issue raised in Trippet and Young. (Wright, supra, 40 Cal.4th at p. 92.)
Nevertheless, for purposes of resolving this case, we shall assume the CUA extends to the offense of transporting marijuana. We shall also apply the test stated in Trippet for determining the allowable quantity of marijuana a qualified individual may transport as neither party challenges the validity or application of this test.
The court in Wright, supra, 40 Cal.4th 81, approved this test for purposes of the MMP, stating that "Trippet s test for whether the defense applies in a particular case survived the enactment of the MMP and remains a useful analytic tool to the extent it is consistent with the statute." (Id. at p. 92, fn. 7.)
As stated, under that test, the question is whether "the quantity transported and the method, timing and distance of the transportation are reasonably related to the patients current medical needs." (Trippet, supra, 56 Cal.App.4th at pp. 1550-1551.) Relevant to a determination of the "patients current medical needs" is evidence of the recommending or approving physicians opinion on the frequency and amount of the dosage required by the patient. (Id. at p. 1549.) While the court in Trippet parenthetically indicated that a physicians recommendation is "not necessarily the only" type of evidence relevant to that determination (56 Cal.App.4th at p. 1549), the remark was dicta.
A determination of the patients current medical needs (Trippet, supra, 56 Cal.App.4th at p. 1551) calls for an individualized assessment. Defendant presented evidence that Dr. Toy recommended that he use a particular dosage of marijuana, namely one-half to three-quarters of an ounce per week. By recommending a specific dosage, Dr. Toy determined defendants particular individual medical needs. In the face of this evidence, evidence of the general possession standards set by other counties is irrelevant. Accordingly, because the evidence is irrelevant under the CUA, we find no abuse of discretion in the trial courts ruling nor any prejudice resulting from that ruling. (People v. Watson (1946) Cal.2d 818, 835.)
II.
Instructional Error
Defendant contends the trial court failed to consider the Legislatures intent when construing section 11362.77 and therefore gave an erroneous jury instruction. According to defendant, section 11362.77 was intended to establish a bar to arrest and prosecution for qualified individuals rather than to impose additional elements of proof upon a defendant when raising a CUA defense. In defendants view, the instruction required him to prove additionally, the amount of marijuana a qualified patient may transport and the circumstances that justify transporting more than that amount. Without any analysis, respondent contends defendant suffered no prejudice from the instruction given.
Defendant also proffered Chris Conrads testimony on the question of legislative intent. Counsel advised the court that Conrad would testify that section 11362.77 was not intended to bar a CUA defense at trial where the defendant was transporting more than eight ounces of marijuana. However, it is unclear whether Conrad would testify to his personal views and the intent of the author, which would have been inadmissible on the question of legislative intent, or whether his testimony would reflect testimony or argument to one of the Legislatures committees, which might have some bearing on legislative intent. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 122.) Moreover, defendant does not cite any authority to support his claim that Conrads testimony was admissible on this question. In any event, whether or not his testimony was admissible, the trial courts refusal to consider it was not prejudicial because the instructions given were proper.
We find the instructions were proper and did not conflict with the CUA. When assessing instructional error, we must consider the instructions as a whole to determine whether the jury was misled. (People v. Lasko (2000) 23 Cal.4th 101, 113.)
The trial court initially instructed the jury pursuant to CALJIC No. 12.24.1, the standard CUA defense instruction, which states that "[t]o establish the defense of compassionate use, the burden is upon the defendant to raise a reasonable doubt as to guilt of the unlawful transportation of marijuana."
The jury was then given the challenged instruction: "[a] qualified patient may possess no more than eight ounces of dried marijuana per qualified patient. [¶] If a qualified patient has a doctors recommendation that this quantity does not meet the qualified patients medical needs, the qualified patient may possess an amount of marijuana consistent with the patients needs." This instruction restates the pertinent provisions of section 11362.77 verbatim.
Section 11362.77 provides in pertinent part:
"(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
(b) If a qualified patient or primary caregiver has a doctors recommendation that this quantity does not meet the qualified patients medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patients needs."
Defendant claims section 11362.77 serves to increase his burden of proof under the CUA. We disagree. As stated in Part I, when raising a CUA defense, the defendant must only raise a reasonable doubt as to the facts underlying that defense (People v. Mower, supra, 28 Cal.4th at p. 481) and this court has recently concluded that CALJIC No. 12.24.1 properly states this burden of proof. (People v. Frazier (2005) 128 Cal.App.4th 807, 816.)
Section 11362.77 is part of the MMP. Among the Legislatures purposes in enacting the MMP was to "facilitate the prompt identification of qualified patients and their designated primary caregivers . . . ." (Stats. 2003, ch. 875, § 1; Wright, supra, 40 Cal.4th at p. 93.) To achieve that goal, "the Legislature established a voluntary program for the issuance of identification cards to . . . qualified patients. (§ 11362.71 et seq.) The Legislature extended certain protections to individuals who elected to participate in the identification card program. Those protections included immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA, among them transporting marijuana." (Wright, supra, 40 Cal.4th at p. 93.)
There is no evidence defendant presented an identification card to Officer DeFreece. Moreover, he was transporting far more marijuana than the threshold amount of eight ounces.
However, a qualified patient who does not hold a valid identification card, still may assert a CUA defense to a charge of transporting marijuana (Wright, supra, 40 Cal.4th at p. 94) and this is true even when the defendant was transporting more than eight ounces of marijuana. (Id. at 97.) The amounts set forth in section 11362.77, subdivision (a) "were intended `to be the threshold, and not a ceiling." (Wright, supra, 40 Cal.4th at p. 97.) Thus, if eight ounces of dried marijuana is inadequate to meet the qualified patients medical needs, the patient is permitted to show under subdivision (b) that he has a doctors recommendation that eight ounces of marijuana does not meet his needs and that the amount of marijuana he was transporting is consistent with his medical needs. (Ibid.)
As we have found, the challenged instruction restates subdivisions (a) and (b) of section 11362.77. Since defendant was transporting about 13 and one-half ounces, which is more than the statutory threshold, the jury was properly advised to determine whether defendant had a doctors recommendation that this quantity did not meet his medical needs and that the amount of marijuana transported was consistent with his medical needs. We see no substantive difference between this instruction and the test required under the CUA, that the amount transported was "reasonably related to the defendants then current medical needs." (Trippet, supra, 56 Cal.App.4th at p. 1549, italics added.) When read with CALJIC No. 12.24.1, the jury was properly advised on the defendants burden of proof. We therefore reject his claim that he was required to raise a reasonable doubt to additional elements not required by the CUA.
Defendant also complains the instructional error was magnified by the courts answer to the jurys question whether the defendant, with lawful cause, is allowed to transport more than eight ounces of marijuana. In response, the court advised the jury that "section 11362.77 reflects the current state of the law regarding how much marijuana may be possessed/transported by a qualified patient, and under what circumstances this amount may be exceeded." Because the trial courts response was consistent with the instruction under section 11362.77 and we have found the instruction was proper, we also reject this claim.
III.
Hearsay Evidence
Defendant contends the trial court erred by excluding critical defense evidence concerning the amount of marijuana Dr. Toy told defendant he could possess. Defendant argues the evidence is not hearsay because it was not offered to prove the truth of the matter asserted, but rather to explain his acts. Respondent contends defendant waived any error because he failed to object on the grounds now raised and that any error is harmless because the same evidence was admitted through the testimony of Dr. Toy. We agree with respondent that the trial courts ruling was harmless error.
We reject respondents claim of forfeiture. Defense counsel defended the admissibility of the evidence on the grounds the evidence was not hearsay but was being offered to show the effect of the statement on defendant. This was sufficient to preserve the claim.
On direct examination, defense counsel asked defendant the following series of questions relating to Dr. Toys recommendation for medical marijuana.
"Q. And did Dr. Toy recommend that you use a particular medication?
MR. JONES: Objection, hearsay.
THE COURT: Overruled. You may answer.
THE WITNESS: Yes . . . .
Q. BY MS GILG: What did he recommend you use?
A. He recommended that I use cannabis.
Q. How much did Dr. Toy recommend that you use?
MR. JONES: Objection, hearsay.
THE COURT: It is hearsay, I suppose.
Is there an exception, Counsel?
MS. GILG: Its the effect on the hearer.
. . . .
THE COURT: Sustained. Please proceed.
Q. MS. GILG: Did Dr. Toy discuss with you how much marijuana you can possess?
MR. JONES: Hearsay.
THE WITNESS: Yes.
THE COURT: Overruled. Next question.
Q. BY MS. GILG: And how much marijuana did he indicate you can possess?
MR. JONES: Hearsay.
THE COURT: It is hearsay. Is there an exception?"
A discussion was held outside the presence of the jury and defense counsel argued that the evidence was not being offered for the truth of the matter but rather to explain defendants actions in possessing the 13 plus ounces. After the court found the evidence was hearsay, defense counsel argued the evidence was admissible under the exceptions for state of mind and inconsistent statements. The court sustained the prosecutors objection.
Evidence of an out-of-court statement is admissible when it is (1) offered for a nonhearsay purpose to prove something other than the truth of the matter asserted, and (2) the nonhearsay purpose is relevant to an issue in dispute. (People v. Davis (2005) 36 Cal.4th 510, 535-536.) When the doctors written or oral recommendation includes a specific dosage, the amount specified to the patient is an operative fact.
Under the operative fact doctrine, where "`"the very fact in controversy is whether certain things were said or done and not . . . whether these things were true or false, . . . the words or acts are admissible not as hearsay, but as original evidence." [Citations.] In these situations, the words themselves, written or oral, are "operative facts" because an issue in the case is whether they were uttered or written. [Citation.]" (People v. Fields (1998) 61 Cal.App.4th 1063, 1069.) Here, Dr. Toys statement to defendant regarding the amount of marijuana he should use was relevant for the nonhearsay purpose of proving the amount the doctor stated as the recommended dosage. The stated dosage was therefore equivalent to an oral prescription. Thus, neither the fact of the recommendation nor the recommended dose was offered for a hearsay purpose. The trial court erred in concluding otherwise.
Nevertheless, a verdict will not be set aside by reason of the erroneous exclusion of evidence unless there is a reasonable probability the error affected the judgment. (People v. Watson, supra, 46 Cal.2d at p. 835; Evid. Code, § 354.) Here the error was harmless because exclusion of the proffered statement was duplicative of Dr. Toys testimony that in May 2003 he gave defendant a one-year recommendation for medical marijuana and recommended that he use about one-half to three-quarters of an ounce of marijuana a week. Accordingly, we reject defendants claim.
DISPOSITION
The judgment is affirmed.
We concur:
ROBIE, J.
BUTZ, J.