Opinion
A127619
10-20-2011
THE PEOPLE, Plaintiff and Respondent, v. JAYSON CHARLES KAIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super. Ct. No. SCUKCRCR 08-0086849)
I. INTRODUCTION
Jayson Charles Kain was convicted by jury of cultivating marijuana (Health & Saf. Code, § 11358) and possessing marijuana for sale (§ 11359). He appeals after he was placed on three years' probation, with imposition of sentence suspended. He claims error in: (1) denial of efforts to substitute private counsel for his appointed defender; (2) a ruling precluding a defense under the Compassionate Use Act of 1996 (CUA) (§ 11362.5); and (3) denial of a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)). We find no error and therefore affirm the judgment.
All unspecified section references are to the Health and Safety Code.
II. BACKGROUND
All of the claimed errors occurred pretrial, and since our review of any ruling is based on facts then before the court (In re Zeth S. (2003) 31 Cal.4th 396, 405; People's Home Sav. Bank v. Sadler (1905) 1 Cal.App. 189, 193-194), there is no point in detailing the trial evidence. We use instead the following summary that was before the court at each ruling through a combined trial brief and in limine motion filed by the People:
"On October 1, 2008, agents from the Mendocino Major Crimes Task Force, along with Mendocino County Sheriff's deputies served a search warrant at [Kain's] residence . . . in Albion, California. Located at the residence was [Kain], along with his sister Sara Kain, her three-year-old son Mitchell, and her boyfriend Alan Nutt. Also found at the residence was a total of 241 marijuana plants, ranging in size from [six] inches to [six] feet in height, $3,227.00, drying marijuana, processed marijuana and two scales.
"[Nine] marijuana plants were found outside approximately [six] feet tall. [Two hundred thirty-two] marijuana plants were growing inside the lower level of the garage along with [five] ballast and [six] growing lights. 52.8 pounds of dried marijuana was found in the east bedroom that had been converted to a marijuana drying room. Approximately 3.6 pounds of processed bud marijuana was found in large zip lock bags in the pantry room. [Seventy-five] grams of processed bud marijuana was found in zip lock bags in the dining room, which appeared to be the 'trimming' room. Also in the dining room was an AWS digital scale and an Ohaus triple beam scale. [Three] medical marijuana recommendations were also found, one belonging to [Kain].
"A post-Miranda interview was conducted by Special Agent Robert Moore with [Kain]. [Kain] stated he'd been living in California at this address for approximately four months. When asked . . . what he did for a living, he replied that he taught people how to surf wake off the back of a boat. He explained he had not been working for some time and was in debt due to the economy and gas prices.
"When asked about the marijuana located on the property, [Kain] stated he had a medical marijuana recommendation and needed to smoke several types of marijuana because he believed his body got immune to marijuana after a while. [He] estimated he smoke[d half an] ounce every day. [He] admitted he had contacted dispensaries in both Oakland and Hollywood about selling them his excess marijuana. He had been told he would receive $3,000.00 per pound. [He] stated that in Oakland he'd be required to sell them marijuana on consignment, but in Hollywood he would not. He stated he'd asked his sister and her boyfriend to visit him for a vacation and to work for him as trimmers."
Because the challenged rulings involve discrete factual and procedural contexts, we add those details in the discussion of each ruling.
III. DISCUSSION
A. "Marsden" Ruling
Taking the issues in chronological order, we review first a Marsden ruling of October 8, 2009. We review a Marsden ruling based on the record before the court when it ruled, disregarding other circumstances. (People v. Berryman (1993) 6 Cal.4th 1048, 1070.)
All unspecified further dates are in 2009.
This ruling came five days before an October 13 trial date that had been set for months. Judge Henderson had just reviewed the People's trial brief and motion. The case had been pending for just over a year, and Deputy Public Defender Elizabeth Fowlds had been Kain's appointed counsel for 11 months. Kain had been out on bail almost the whole time, having served only two days in custody.
Five weeks earlier, on September 4, there had been discussion before Judge Henderson about vacating the trial date because the defense was having trouble securing a date for an expert witness—identified in a declaration as Chris Conrad—due to Conrad's schedule. Fowlds had offered possible dates for November and December, but those dates did not work for Deputy District Attorney Katherine Houston. This had left March of 2010 as the next feasible time for trial if the current date of October 13 were vacated, and the court had been unwilling to set the case "that far out." The court suggested using another expert since it had run into problems in other cases "for months around Mr. Conrad's schedule." The court continued the matter to September 11 to reconsider resetting and to allow Fowlds to "work on some alternatives." A reporter's transcript for September 11 reflects that Fowlds still had unspecified scheduling "issues" but secured a continuance to September 17 to consider a plea offer. We have no transcript for September 17, and the court minutes reflect only that the trial was confirmed.
That was the situation when, at the next hearing, October 8, Kain made a Marsden motion after Judge Henderson had denied Fowlds's renewed request for a continuance (of unspecified length). Fowlds had cited unavailability of Conrad, saying he would testify about the quality and estimated weight of the marijuana, adding that she had been unable to contact Kain's "recommending physician" for testimony on Kain's "usage for medical marijuana." The People, now represented by Deputy District Attorney Shannon Cox, opposed any continuance, Cox citing her own busy schedule in November and December, the long pendency of the case, prior setting and resetting, Fowlds's long role as counsel, and lack of evident effort to find other experts. Fowlds said she did not "believe there are other experts," and submitted. The court denied the request, citing lack of an explanation why Kain could not secure the appearance of his own recommending physician.
The court then heard the Marsden motion in closed session, inviting Kain to explain in his own words what he thought Fowlds should be, but was not, doing. Kain said he had not understood the need for his witnesses to appear in person and be subpoenaed. Pressed by the court about what witnesses he needed, Kain identified: his doctor (Harry Lewis, "my expert witness on my medication"), and "collective members that were not living at my place, but I was growing for in a collective." He said he had given Fowlds their names. He also cited issues about the weight of "mold" on the hanging plants, and the effect of dust on an outdoor crop (which could be cooked and eaten but not inhaled).
The court then turned to Fowlds, who confirmed that Kain had given her names of "potential collective members" "a ways back." She said there had been "some difficulty of communication" throughout the case caused by her "availability" and Kain not having "good phone service on the coast." She had needed to cancel appointments but could not reach him, and thought she "may have misconstrued some of his intentions with regard to defense." She said she knew about recommending physician Lewis from recommendations seized at Kain's house, but she had not anticipated difficulty in securing Lewis's appearance for next week. Asked by the court if she felt that Kain's "collective defense" was valid, Fowlds said, "I think it could be." She said she had been "incorrect" about the availability of a witness whose "recommendation was at Kain's property." The witness had moved out of state, and would testify about "[c]ollective membership." However, after conversing with Kain "today," Fowlds believed the person would be available.
Kain then spoke again, saying he was initially "under the impression," or had been "led to believe," that it was enough to have an investigator get a witness's statement, in lieu of personal testimony in court, and it was now "a little late for Tuesday['s trial]." Without giving a name, Kain said the person had moved to South Dakota after getting pregnant over the summer. When pressed by the court about how much "notice" he would need to get her to court, Kain said he did not know, but that "[s]he works."
The court commented that it seemed Fowlds was doing an adequate job in representing Kain but that there were two problems. One was "communication": Kain had not known of a need for personal testimony of witnesses, although the court said it could not imagine that an experienced trial attorney like Fowlds would have led Kain to that misunderstanding. An interruption by Kain evidently threw the court off track, so that it never articulated the second problem. The court simply denied the motion and ordered the transcript sealed.
Back in open session, the court announced that it had denied the Marsden motion but was allowing Fowlds to "renew" her motion for continuance. Asked to "explain the basis for it," Fowlds repeated that she had understood that the witness—later identified as Jessica Pottswald—could testify that she "was, in fact, part of this collective," but was unavailable. Now, however, in speaking with Kain, Fowlds felt that this was "not the case" and that Pottswald's testimony "could definitely be something that would make his defense more viable." Pressed by the court as to whether one witness could establish "all the requirements for a collective," Fowlds said: "Well, I think, it could go a lot toward that, your Honor. Yes, I do."
The court responded that, if it vacated the trial date, it was going to reset it for a date in three or four weeks, and not beyond. The prosecutor objected strongly to any delay, but to no avail. The court vacated the trial date and reset it for November 2, but warned: "[T]hat's a hard trial date. And if witnesses are not available, we are going to proceed on that day." Fowlds said, "Understood." The court remarked. "This case has been at issue for some time. It appears to me these are issues Mr. Kain has only recently brought up to his counsel and that we are going forward as quickly as possible." Fowlds added, "I think it was a misunderstanding on my part as well."
When presented with a Marsden motion, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective assistance is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith).) Review factors include the timeliness of the motion, the adequacy of the court's inquiry, and whether the claimed conflict was so great that it resulted in a total lack of communication preventing an adequate defense. (Id. at p. 606.)
Kain does not argue that the court did not allow him to adequately explain the basis for his motion or that the record showed an irreconcilable attorney/client conflict. Nor does he claim that the record clearly shows that Fowlds was not providing adequate representation. Rather, he argues that the court should have inquired further of Fowlds in order to establish a record of deficient performance in not having witnesses subpoenaed and available for trial on a "collective defense" under the Medical Marijuana Program (MMP) (§ 11362.7 et seq.; see People v. Kelly (2010) 47 Cal.4th 1008, 1046 [holding, after trial herein, that specified MMP limitations on amounts that may be possessed were invalid]). Without need to address the potential merits of such a defense here, we reject the argument of inadequate inquiry.
First, the record supports the court's finding of adequate representation. From the combined comments of Kain and Fowlds, the court could reasonably find that Fowlds had in fact been aware of Kain's desire to present a defense by establishing medical use of marijuana and perhaps that he was involved in some sort of cooperative. The problem was miscommunication in that Fowlds had not understood that the out-of-state witness might nonetheless be available. This miscommunication was fueled in part by Kain's "impression" or belief that he would not need to have witnesses present to testify. The court, by saying it could not "imagine" that Fowlds had given Kain any such misadvice means, of course, that the court found no misrepresentation in that respect. Nothing in the record compels a finding that the misunderstanding was, in the circumstances, a result of deficient performance by Fowlds. Kain was given full opportunity to express himself on the subject, and he established, along with comments by Fowlds, only that he had given names to her but that, due to some miscommunication, she did not understand that the out-of-state witness he alluded to might be willing or able to testify. Despite efforts by the court to have Kain give the names of witnesses, Kain never named the out-of-state witness (although counsel did so after the ruling), and never identified any others.
The record does show that Fowlds had encountered unexpected difficulties in securing the attendance of Kain's recommending physician and proposed expert, Conrad, but again, nothing shows that the steps Fowlds took were inadequate. The court also indicated personal experience in other cases with Conrad's schedule, which supports an implied finding that inability at that point to secure Conrad's presence for trial was not deficient performance. Nor is there any basis for faulting Fowlds for inability to contact or secure the trial attendance of Kain's recommending physician. Thus the record we have does not show abuse of discretion in finding adequate performance.
As for Kain's argument that the court erroneously failed to create a better record for him, we are cited no authority that a trial court in circumstances like these has a duty to conduct a full scale inquisition in hopes of aiding the defendant to meet his burden on the Marsden motion. Judge Henderson reasonably inquired of Fowlds enough to be satisfied that there had been a miscommunication about one witness's availability, and that conversations that day at court had corrected the misunderstanding such that counsel and client now both desired a chance to explore the witness further. Judge Henderson also understood fully that there had been difficulty in obtaining the expert and physician.
Finally, the court's ruling and subsequent invitation to renew and reconsider Fowlds's request to vacate the trial date show that the court was fully responsive to the miscommunication problem as well as the difficulties in obtaining witnesses. It vacated the trial date over strenuous objection by the People, and reset it four weeks further out. This was despite Kain's inability to even estimate how long it might take to secure the out-of-state witness. In essence, the court found adequate performance but, as a precaution, vacated the trial date to provide the defense with more time. It is ironic that Kain now urges, on this record of no disagreement between himself and then-counsel Fowlds about gaining the attendance of witnesses, that the court's only proper recourse was to unearth some inadequate performance so that it could send the case back to square one with newly appointed counsel.
Finally, of course, untimeliness supports the ruling. " 'It is within the trial court's discretion to deny a motion to substitute made on the eve of trial where substitution would require a continuance.' " (Smith, supra, 30 Cal.4th at p. 607; People v. Turner (1992) 7 Cal.App.4th 913, 919.)
"The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. [Citation.]" (Smith, supra, 30 Cal.4th at p. 604.) The record does not suggest that denying substitution and allowing Kain and counsel more time to secure witnesses would substantially impair his right to counsel.
B. Retained Counsel Substitution and Continuance
Next in time is Kain's complaint that the court abused its discretion by denying his repeated attempts to have retained counsel Ean Vizzi substituted for Fowlds. Because the attempts spanned a period of time and were before three judges, each of whom ruled on distinct, emerging circumstances, we examine each effort separately.
October 29. The first effort was on Thursday, October 29, three and a half weeks into the continuance and just four days before the new trial date of Monday, November 2. The matter was heard by Judge Ronald Brown. Kain was back in custody, after an arrest for new offenses. Fowlds was present, and Vizzi appeared personally, asking that he be allowed to "substitute in conditioned upon the court vacating" the trial date. Prosecutor Cox said she had no objection to the substitution but objected to continuing the trial. She noted the long pendency of the case, previous trial settings, and latest action by Judge Henderson in ordering a "hard setting" upon granting a four-week continuance over the People's objection. Judge Brown asked Vizzi if he could be ready by Monday, but Vizzi said there was no way. Quizzed as to why the substitution request came at the last minute, Vizzi said Kain had construed the Marsden ruling to mean he could not substitute counsel "at all." Cox countered, however, that she had received a call from Attorney Keith Faulder, on the morning of the last motion in limine date. Faulder told her Kain "was in his office wanting to change attorneys," and Cox told Faulder she would oppose any continuance motions. Thus, Kain had been thinking of substituting with private counsel for some time. Judge Brown said he would have no hesitation were the case not "so old" and the request "last minute." He asked Vizzi how long he would need to be ready if allowed to substitute in, but Vizzi said he had no idea and would have to ask for "a date 30 days out just to set so that I can review the file and determine what defenses are potential, as well as pretrial motions." When Cox objected based on the People's right to a speedy trial, the court asked Vizzi if he had any authority for these circumstances, "where, on the eve of trial, he's asking to substitute new counsel, who then wants to continue the case perhaps for months." Vizzi replied that he had nothing at his fingertips that day.
Judge Brown said that the best he was willing to do was "put this over until tomorrow afternoon. If you can find some case law to support the position that his right under these circumstances outweighs the interests of the People in a speedy trial, I will consider the issue at that time." Vizzi said he was unavailable on the morrow (Friday) but might file something by Monday. The court ruled: "But, at this point, your request is denied without prejudice. If you file something by Monday, the court will reconsider."
Controlling law is found in People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz), which dealt with a defendant substituting retained counsel for other retained counsel, but the same principles apply to substituting retained counsel for appointed counsel (People v. Courts (1985) 37 Cal.3d 784, 789-791 (Courts)). "[Ortiz] held a nonindigent defendant was not required to satisfy the [inadequate-assistance or irreconcilable-breakdown] requirements of Marsden if he wished to discharge his retained counsel of choice. Ortiz held that the defendant's right to discharge his retained counsel was not absolute, and the trial court retained discretion to deny such a motion if the discharge (1) would cause ' "significant prejudice" ' to the defendant, e.g., by forcing him to trial without adequate representation, or (2) was untimely and would result in a ' "disruption of the orderly processes of justice unreasonable under the circumstances of the particular case." ' [Citations.] '[T]he "fair opportunity" to secure counsel of choice provided by the Sixth Amendment "is necessarily [limited by] the countervailing state interest against which the Sixth Amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time." ' The trial court, however, must exercise its discretion reasonably: 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.' [Citation.]" (People v. Lara (2001) 86 Cal.App.4th 139, 153.) Included in the balance is the People's right to a speedy disposition. (Courts, supra, 37 Cal.3d at p. 794.)
The situation facing Judge Brown on October 29 was that the case was nearly 13 months old, had been initially set for March 2, was reset at defense request for July 6 and October 13, and most recently set for November 2, over the People's objection, to accommodate another defense request. The court had warned that this one was "a hard trial date." As for whether the new request was justifiable just four days before trial, Vizzi offered only that Kain waited because he misconstrued the Marsden ruling four weeks earlier to mean he could not substitute counsel "at all," even retained counsel. Kain was absent from the hearing and provided no explanation himself, but the prosecutor countered, on personal knowledge, that Kain had been seeking private counsel longer than Vizzi's account suggested. Vizzi was certain he could not be ready for trial on November 2. He had "no idea" how long he might need but would have to ask for a minimum of 30 days "to set," and perhaps need months longer.
In these circumstances, Judge Brown was within his discretion to deny the motion. He also did so without prejudice, leaving the door open for reconsideration on Monday, November 2 (Vizzi being unavailable on Friday) in case Vizzi could find and submit any supporting authority on the facts presented.
November 2. Monday's proceedings were back before Judge Henderson, for in limine motions. Kain was present (represented by Fowlds), but Vizzi was absent and had submitted nothing. The parties advised Judge Henderson of the substitution/continuance matter as presented to Judge Brown. Kain stated that he had retained Vizzi for his new, 2009 case, and Fowlds expressed Kain's desire that Vizzi represent him in both cases, adding that she now feared some "disadvantage" in trying the 2008 cases should evidence from the new case be admitted. She understood, and the prosecutor confirmed, that no such evidence would be used in the People's case-in-chief. Prosecutor Cox said she could not categorically predict that the evidence would not prove relevant should the defense "open a door" to its use, but said she would not mention it in front of the jury unless first authorized by a sidebar conference or hearing on its admission.
Judge Henderson noted that the case was over a year old, had been continued a number of times, and that Fowlds had been "very actively" representing Kain. He denied a continuance, finding Kain's retention of Vizzi an insufficient basis. He also remarked that there were no "allegations" concerning Fowlds's ability to properly represent Kain.
We see no abuse of discretion in the ruling. The court, if still lacking authority factually on point, was presumably aware of established legal factors. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913; Evid. Code, § 664.) Little had changed since Judge
Brown's ruling four days earlier except, of course, that the trial was now underway. Kain was present this time but made no showing at all as to why he had waited so long, and his appellate counsel raises no claim of error in the court's decision regarding use of any evidence from the new case. Appellate counsel does not fault the court's remarks that Fowlds was actively and properly representing Kain. We presume that the court knew that inadequate assistance was not needed to grant substitution of retained counsel (ibid.; Ortiz, supra, 51 Cal.3d at p. 984); the court was evidently noting this time that, unlike the situation in its October 8 Marsden and continuance rulings, there were no Marsden issues ("allegations"). Appellate counsel also does not claim distinct error in the implicit continued denial of substitution and continuance when, three pages later in the transcript, at the start of the evidentiary hearing on defense evidence (see part III.C., post), Fowlds reiterated her objection that Kain wanted Vizzi to represent him in both cases. Absolutely nothing had changed.
A jury had not been brought in that first day. Cox had asked that the court first resolve the admissibility question so that the parties would know better how to structure their voir dire, and the question remained under submission and unresolved at day's end.
November 3. At the close of the November 2 hearing, Judge Henderson took the admissibility question under submission and continued the matter to November 3 for a ruling and for Kain's possible arraignment (Fowlds standing in for Vizzi if need be) on the newly-filed charges in the new case.
Matters the next day, however, came before Judge John Behnke. We have a reporter's transcript for that hearing, but not for one earlier that day in which Judge Henderson sent the case to Judge Behnke "due to transportation issues." Cox clarified for Judge Behnke that, while trial in the old case had been set to begin the day before, "[d]ue to court congestion, it was unable to go out." Judge Henderson had said he was resetting trial "on a short basis" and could begin again in two weeks, on November 16. Our record does not show that the matter of substitution and continuance was raised that day before Judge Henderson, but Cox noted for Judge Behnke that Vizzi was "attempting to substitute in and requesting a continuance" there. Judge Henderson also sent the new case to Judge Behnke. Thus Vizzi was present and representing Kain in the new case, while Fowlds represented him in the old case. All counsel apprised Judge Behnke of the denials of Vizzi's Thursday effort to substitute in, and Fowlds's Friday, renewed effort.
Judge Behnke addressed first the new case. He accepted a peremptory challenge of Judge Henderson (Code Civ. Proc., § 170.6), took Kain's plea of not guilty and denial of a special allegation on the new complaint, set bail, and left the setting of a preliminary hearing to the presiding judge to assign out.
Turning to the old case, Judge Behnke noted that judges in two other departments had already denied continuances, and he honored Judge Henderson's desire to have trial reset for November 16. Addressing Vizzi, Judge Behnke said: "[W]hat I'm gonna to do is, in addition to setting it for trial. I'm gonna give you an additional pretrial conference in front of Judge Henderson. And, Mr. Vizzi, I know you haven't substituted in in the old case, and you're certainly welcome to do that, but at this point I'm not prepared to continue the case."
Kain faults this denial of a continuance, but Vizzi offered Judge Behnke no information beyond the fact that he was in the process of trying to substitute in. He made no formal or informal request of Judge Behnke, who was new to the case. He gave no indication of how much time he would need to be ready, leaving the judge to infer that a continuance could be open ended. The new trial date of November 16 was now two weeks off, and the judge seems to have been saying that, while Vizzi was welcome to substitute in if he liked, the paltry showing made "at this point" provided no justification for a further continuance. We agree. The ruling effectively left the matter for Judge Henderson to consider at the pretrial conference, which Judge Behnke then set for November 10. Vizzi had the same impression, saying: "And what I plan to do is, I'll file a formal motion to continue and request to continue and set it for the 10th, and then that'll . . . clarify the record." Judge Behnke offered to sign "an order shortening time for that[.]" No abuse of discretion appears.
November 10. As he had planned, Vizzi filed a formal motion (on November 6) noticed for the pretrial conference on November 10. For factual justification, Vizzi related that Kain had retained him on October 28, that he had sought substitution and a continuance on October 29, that Fowlds had renewed the request on his behalf on November 2, that the trial date had then been continued to November 16, and that he needed time to examine and prepare the case. He made no estimate, saying only that Kain claimed he was a qualified patient under the CUA and that Vizzi had received no discovery yet and needed "ample time to review the file, conduct necessary investigation and interview key witnesses and prepare a defense[.]" Noting that the court had now continued the case on its own motion due to court congestion, Vizzi urged that a continuance would not prejudice the prosecution or disrupt the orderly process of justice.
Vizzi added no further facts or arguments at the hearing before Judge Henderson, Prosecutor Cox objected, as she had in filed opposition, to any continuance, noting that the request was not timely, had been denied now by three different judges (including Judge Henderson), and that the parties had already held an evidentiary hearing on the admissibility of defense evidence and were awaiting a ruling. The opposition also noted that Kain had not shown that he made any effort to find alternate counsel before the eve of trial.
Judge Henderson invited Vizzi to substitute in if he liked but denied a continuance and preserved the November 16 trial date. He cited the long pendency of the case, the setting and vacating of trial four times already (always at defense request and just once with prosecution consent), a lack of indication that Vizzi could provide any "specific type of defense that current counsel cannot," and an absence of any explanation "whatsoever" for the delay. Vizzi declined to substitute in, citing conflict with a Ventura County jury trial.
Again, no abuse of discretion appears. With six days until a continued trial date, Vizzi still had no idea how long a continuance he would need, had evidently done no preparation on the case, could not articulate any reason why Kain waited so long to retain him, and never produced a statement from Kain explaining the delay. True, the prosecutor had not identified any particular witnesses who would be inconvenienced or unavailable should a continuance be granted, but this would have been impossible to show given that Vizzi could not even estimate how long he needed and was apparently asking for an open ended continuance. "[A] reviewing court looks to the circumstances of each case, ' "particularly in the reasons presented to the trial judge at the time the request [was] denied" ' " (Courts, supra, 37 Cal.3d at p. 791); Vizzi presented very little, and no explanation for the long delay.
Kain tries to analogize his situation to that in Courts, supra, which reversed due to denied substitution and continuance (Courts, supra, 37 Cal.3d at pp. 795-796), but the case is not analogous. First, the appellant and new counsel in Courts provided ample explanation that allowed the Supreme Court to find that the appellant acted as diligently as the circumstances allowed. "The record establishes that appellant engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date [of October 26th]. Nearly two months before trial, appellant contacted [Attorney] Swartz and discussed representation and the fee. During the weeks that followed, appellant attempted to raise the necessary funds. He conscientiously informed the court of his efforts as early as October 18th and made a motion for continuance on that date." (Id. at p. 791.)
Our record does not show what efforts Kain made, or his financial situation, and we cannot say that he "was diligent in his efforts (1) to secure counsel of his own choosing before the date of trial, and (2) to apprise the court of his wishes at the earliest possible time." (Courts, supra, 37 Cal.3d at pp. 795-796.) All we know is that he retained Vizzi on October 28, five days before the initial trial date. Second, Kain's effort to show lack of prejudice from the fact that Judge Henderson had to continue a trial date due to court congestion is counterproductive. Courts observed, "There was no evidence that the Shasta County Superior Courts were particularly congested during this period. If anything, the availability of two judges to try the case [citation] suggests the contrary." (Id. at p. 794, fn. omitted.) Here, Judge Henderson's continuance gives clear evidence of court congestion. Third, the request in Courts "was only the second request by appellant for a continuance," one prior request for discovery having been denied. (Id. at p. 792.) Here, the court had granted the defense continuance after continuance, until the case was over a year old, and Kain sprung his desire for retained counsel on the court only on the eve of trial. "A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' [Citation.]" (Id. at pp. 790-791.)
C. Exclusionary Ruling
The People's in limine motion to exclude targeted anticipated defense evidence that Kain grew marijuana for his personal medical use as authorized by the CUA, and the issue for the court, simply put, was whether such evidence should be admitted given the vast amount of marijuana found or—put differently—whether a reasonable juror could find that the amount was attributable to Kain's use for medical purposes. The People prevailed after a November 2 evidentiary hearing at which three witnesses testified. We summarize mainly the evidence on the amount Kain needed and used, which the trial court correctly found to be dispositive.
Harry Lewis. Physician Harry Lewis had recommended marijuana for Kain to ease the intestinal cramping symptoms of irritable bowel syndrome, and to help with his digestion of food. Lewis had lost all of his records in a fire in March 2008, but Kain had been his patient for about three years. Lewis had recommended that Kain use marijuana "as needed." He generally left it up to the patient whether to smoke or eat it, and did not recall discussing with Kain the specifics of how he would use it.
Kain. Kain testified that Lewis recommended marijuana for his appetite and muscle spasms—"as needed for the pain." Kain did not know why but found he had to use different strains of marijuana, perhaps because he grew "immune" to medicines so that they lost their efficacy. The plants growing when he was arrested in October 2008 were his second crop, the first having been of a single strain that lost its efficacy within a couple of days to a week. He did not know what yield he would get with the second crop, given his inexperience, the strains he was trying out, mold that had begun growing on his indoor plants, and bad weather that affected his outdoor plants.
Kain said that, when the warrant was served, he had his sister and her boyfriend there to trim the marijuana for him. He had paid them each $500 in traveling expenses to come to California to help him "taking my medicine down." He did not "allow" them to smoke the marijuana but saw them smoking it. Neither of them had a prescription for it.
Kain had belonged to cannabis clubs in Los Angeles, Oakland, and Fort Bragg, but had not sold to any of them. He thought that, if he had excess yield, he could take it to the clubs and be reimbursed for his time and effort and expenses. This would not be selling, he explained, but using his crop in trade for different strains.
While Kain said he was unsure whether his yield would have been greater than his medical needs, he was very vague about what his medical needs were. He got a lot of relief from marijuana, which made his condition "recede for the hour or two or three that it helps until the cramps or whatever come back . . . ." Asked to estimate how often a day he smoked it, however, he gave this rambling non-estimate: "As my cramps or my food pattern, it depends. I can't—it all depends on the day. And the day's different every time because you are dealing with food. You can't eat once a day and be good for 24 hours a day. And sometimes that's what it is, sometime there's in food for a couple days. The cramping it depends on the medicine, whether it's working good or not. That's why switching it up, if I can switch to different kinds it does help be able to effectively be able to . . . ." He smoked it, in joints or through a bong, and cooked it as well: "Butter and oil. Bake it, use it. There's tinctures. I am trying—this is to better my life. So I am trying to find the best and there is no—there's no expert that can tell you this kind."
He did eventually say that he smoked "[w]ay more than a full joint" each day. He smoked "[a] full joint every time I get a cramp that I can't bear," and those cramps came "[e]very couple hours." Asked if he got up during the night to smoke a joint for cramps, he explained: "Well, usually I try to use hot water or ice to alleviate them if I can. I will smoke, maybe eat cookies that is sitting around, put some butter on bread. Just depends. Depends on whether I feel like at the time I can eat." He never indicated how much marijuana he used when ingesting it.
Robert Moore. Special Agent Robert Moore of a sheriff's task force had prior experience with investigations of at least 300 indoor and 300 outdoor marijuana gardens, and had testified as an expert in possession-for-sale and cultivation-of-marijuana cases. He had spoken with over 100 medical marijuana users with recommendations, about 10 instances of which involved possession within usage guidelines and did not result in arrests. Moore was at the warrant search of Kain's property.
At the property were nine outdoor plants about six feet tall, and Kain told them the plants had numbered 25 before he began harvesting them. Indoors in a garage were 232 growing plants, about a third of which were mature and budding. There were 241 growing plants in all. Then, in a bedroom, were hanging marijuana plants in various stages of drying, like those found outdoors but with root balls and lower stalks cut off, most ready for trimming. Their combined weight was 52.4 pounds, and would have produced up to 15 pounds of mature flowers. Also, a dining room converted to a "trimming room" held marijuana debris, a table, scissors, two scales, packaging materials, and paper bags full of trimmings called "shake marijuana" consisting of leaves, stems and other parts. Then, in a pantry, were just under four pounds of processed bud marijuana.
Moore did not see, but was not looking for, mold on the plants. He also saw no markers or tags on the plants indicating different strains. He had no expertise in medical marijuana but, until speaking with Kain that day, had never heard of using "different strains for the medicine to remain active . . . ." Kain never mentioned to him that he used it in edible form, and never claimed to be a member of a collective or cooperative. Moore spoke with Kain's sister and boyfriend, who did not claim to have recommendations and who admitted being from out of state. Kain told Moore that he paid the two $15 an hour to trim his marijuana, later changing his story to having given them $500 each when they arrived.
Kain told Moore he had spoken with dispensaries and planned, if his yield exceeded his medical marijuana needs, to "front" the excess to one of the clubs. A Hollywood club was willing to give him an immediate $3,000 per pound, while an Oakland club would only take the drug on consignment.
Ruling. At the new pretrial conference on November 10, having had the matter under submission, Judge Henderson excluded the evidence, commenting: "There w[ere] approximately three and a half to four pounds of bud marijuana, an estimated 15 pounds of drying marijuana in the form of colas. And then nine plants that were six feet in height and 232 plants . . . at various other stages of growth of which [a] third or approximately 70 of those were budding. So there's a significant amount of marijuana in this case.
"The question then is whether a reasonable doubt can be raised that the marijuana was used or possessed for personal use or for use that is approved by the [CUA]. And the prescribing doctor . . . did not testify that the guideline amount set forth in Health and Safety Code section 11362.77 was not sufficient to meet the defendant's medical needs. He did not testify that any particular amount would satisfy the needs. And when Mr. Kain took the stand, he testified . . . as to how he used marijuana in different forms, but did not at any time testify as to the amount that he used or that he felt was reasonable to support his medical needs.
"So at this point the amount needed to meet Mr. Kain's needs, if in fact there is any, is just totally speculative. There has been no evidence presented . . . showing what amount might under any circumstances . . . be reasonably related to his medical needs. So at this point [there has been] an insufficient showing to permit the introducing of . . . evidence regarding the use of marijuana for medical purposes."
At trial on November 16, attorney Fowlds asked for reconsideration, offering a further case citation, but Judge Henderson adhered to his exclusionary ruling.
Legal analysis. "In 1996, the California electorate approved Proposition 215 and adopted the CUA, which provides: 'Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient . . . who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.' (§ 11362.5, subd. (d).) By this and related provisions, the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. [Citations.]" (Kelly, supra, 47 Cal.4th at pp. 1012-1013, italics and fn. omitted.) The Legislature later purported to burden a CUA defense by specifying, as part of the Medical Marijuana Program (MMP) (§ 11362.7 et seq.), amounts that could be possessed and cultivated under the CUA, but the effort was declared invalid in Kelly because it was undertaken without electorate approval. The CUA is not so confined; rather, it allows possession and cultivation of amounts reasonably related to a patient's current medical needs. (Kelly, supra, at pp. 1012-1013, 1023-1024, 1027, 1043, 1049, endorsing this court's decision in People v. Trippet (1997) 56 Cal.App.4th 1532, 1549 (Trippet).)
State guidelines, still applicable to the MMP but not the CUA (Kelly, supra, 47 Cal.4th at p. 1048), specify quantity limits of "eight ounces of dried marijuana" and "six mature or 12 immature marijuana plants . . . ." (§ 11362.77, subd. (a).) Weight is measured by "[o]nly the dried mature processed flowers" (id., subd. (d)), and patients may exceed those amounts only if permitted through local (county or city) guidelines (id., subd. (c)), or a doctor's recommendation that a greater amount is consistent with the patient's needs (id., subd. (b)).
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The burden is on a defendant to prove each factual element of a CUA defense, including what amount of marijuana is reasonably necessary for his or her medical needs, but the ultimate burden is only to raise a reasonable doubt. (People v. Mower (2002) 28 Cal.4th 457, 477-481; People v. Spark (2004) 121 Cal.App.4th 259, 262.) Thus the question for the trial court, as recognized below, was whether the evidence was enough to raise a reasonable doubt with the jury. "On appeal, we likewise ask only whether the requested [defense] was supported by substantial evidence—evidence that, if believed by a rational jury, would have raised a reasonable doubt as to whether [Kain possessed and cultivated no more than the amounts reasonably related to his medical needs]." (People v. Mentch (2008) 45 Cal.4th 274, 288 [addressing whether a recommending physician was primary caregiver].) What amounts are reasonably necessary for medical needs is a question of fact for the jury (People v. Jones (2003) 112 Cal.App.4th 341, 346, fn. 2; Trippet, supra, 56 Cal.App.4th at p. 1549), but whether substantial evidence supports presenting that defense to the jury is, of course, a legal question.
We start with the court's reference to state guidelines of eight ounces, plus six mature or 12 immature plants. (§ 11362.77, subd. (a); fn. 4, ante.) Those would be held legally inapplicable to the CUA with the decision in Kelly (supra, 47 Cal.4th at p. 1049), two months after the ruling below. We do not view the ruling as having rested on those guidelines, yet they are useful even without binding legal value. They appear to furnish a presumptive norm for ordinary medical use, and as such they highlight how far afield the amounts were in this case. Kain did not have eight ounces of dried processed flowers, but nearly 40 times that amount, including the 15 pounds available in the drying plants, and this did not even include what could be processed from the mature uncut plants growing in the garage and numbering perhaps 150. He had not six mature or 12 immature plants, but nearly 80 mature plants and roughly 150 immature plants. In simple terms, Kain had some explaining to do as to how this could all be reasonably related to his medical needs.
His recommending doctor, Lewis, was utterly useless in meeting that burden. Lewis had prescribed marijuana only as needed, and offered no estimate or even range of amounts needed for Kain's medical needs. Kain himself was of little help, and seemingly evasively vague. We assume in our analysis that, while there is reason to question his veracity, reasonable jurors might credit his claims of needing more than one variety of marijuana, of having planted multiple varieties in his grow, of having mold or weather problems affecting yield, and of using marijuana in both edible and smoked forms. Accepting all of that for sake of argument, however, Kain offered almost nothing, despite repeated efforts to draw him out, as to how much marijuana he needed in either form, and absolutely nothing as to how many varieties he had growing, and what portion of the crop he feared was diminished by the mold and weather problems he cited.
The only thing Kain ultimately said as to quantity was that he might need to smoke a joint every two hours when "unbearable" cramping occurred. He did not say how often that occurred, and for cramping during the night, he said he resorted to hot water or ice, or even just buttered bread, beyond whatever amounts of brownies he ate, or marijuana he smoke. Judge Henderson aptly observed that this rendered his medical needs "totally speculative." Nor was there any testimony as to how much marijuana Kain used in each joint.
The upshot of Kain's appellate argument seems to be that, since he was a "novice" inexperienced in growing various strains and perhaps in assessing his own needs, this left room for a rational jury to entertain a reasonable doubt whether the massive crop he had was not reasonably related to his medical needs. We disagree. That would be tantamount to saying that, in the CUA defense game, a defendant always prevails, so long as he can hide the ball. We remind him that it was his burden to establish reasonable doubt, not just to leave jurors scratching their heads at the vagueness of his evidence. With the huge amount of marijuana presented in this case, Kain had to do more.
IV. DISPOSITION
The judgment is affirmed.
Haerle, J. We concur: Kline, P.J. Richman, J.