Opinion
G052229
05-15-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY JOHN KOSSAK, Defendant and Appellant.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13WF2976) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas A. Glazier, Judge. Reversed and remanded. John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Following a jury conviction for transportation of over 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)), defendant Gregory John Kossak was given a suspended sentence and placed on three years of formal felony probation. He contends that his conviction must be reversed due to a legislative amendment to section 11360, made after he was sentenced and prior to his conviction becoming final, which limits criminal transportation to that done with an intent to sell. The Attorney General concedes that the amended statute applies, but argues that the conviction may nevertheless be affirmed under the harmless error standard. Without deciding whether application of state and/or federal harmless error principles is proper in a case such as this, we conclude reversal is warranted because we cannot say that the error was harmless under either standard.
All further statutory references are to the Health and Safety Code unless specified otherwise.
I
FACTS
Responding to a report of a suspicious vehicle in a residential neighborhood, City of Cypress Police Officer Paul Ruiz approached defendant as he exited a parked vehicle that matched the description reported. Officer Ruiz asked defendant what he was doing in the area, and defendant responded that he was visiting a friend. Continuing on his way, defendant proceeded to one of the nearby properties and walked past the house located adjacent to the street, to a second residence located at the back of the property. Officer Ruiz and another officer who had arrived on scene approached the vehicle from which defendant had emerged. As they did, they smelled the odor of marijuana coming out of the vehicle's partially open windows.
After approximately 10 to 15 minutes, defendant reappeared and the police officers approached him. Defendant reiterated that he was visiting a friend and consented to a full search of his vehicle. During the search, Officer Ruiz found a medical marijuana recommendation card in defendant's name, two storage bins containing a variety of marijuana products and paraphernalia, as well as what appeared to be equipment used for producing the marijuana products found. Among the items found were over two dozen empty half-ounce glass bottles and a plastic tray to hold them, lids with eye droppers for the bottles and plastic tabs to seal them, cardboard boxes with dividers, shrink wrap, preprinted and blank adhesive labels, a large funnel, a saucepan, and a large plastic measuring cup. Also found in the vehicle were mason jars containing a dark liquid, approximately two dozen shrink wrapped and labeled, half-ounce glass bottles containing a dark liquid, over two dozen two-ounce glass bottles containing a dark liquid and labeled "420 maple syrup," and a price sheet listing various items and associated prices.
In speaking to the officers, defendant admitted that the dark liquid contained in the bottles and mason jars was liquid marijuana. He said it was for his personal use and that it was packaged in small bottles so he would know how much to take at a time.
After speaking with a narcotics detective, Officer Ruiz arrested defendant. Defendant was charged with possession of marijuana for sale and transportation of over 28.5 grams of marijuana. Prior to trial, the prosecution moved to dismiss the possession charge. The trial court granted the motion, leaving only the transportation charge for trial.
At trial, the parties stipulated that defendant had a valid physician recommendation to use marijuana on the date of his arrest and that the liquid substances found in defendant's car were marijuana. Undisputed testimony confirmed that the total weight of the liquid marijuana exceeded 3,000 grams, or 100 fluid ounces in volume. The narcotics detective who spoke with Officer Ruiz on the day defendant was arrested testified that much of the liquid found in defendant's car is a product commonly known as a tincture, which is made by dissolving marijuana in grain alcohol. He further testified that many of the items recovered are the type used in the tincture production process. Based on his training and experience, and the quantity of liquid marijuana found in defendant's vehicle, the narcotics detective opined that the amount of marijuana found would generally exceed a person's need for medical use.
Defendant took the stand and admitted that all the items found in the vehicle were his and that the liquid substances were marijuana products, including tinctures, topical rubs, and pancake syrup. He explained that he had a medical recommendation from a physician to use marijuana to prevent seizures caused by his epilepsy — a condition he has had since he was born. He testified that he primarily smoked marijuana, but that he also would also ingest it or use drops of a tincture when in places where he could not smoke.
With respect to the day of his arrest, defendant testified he was stopping by a friend's house to talk about potential residential painting jobs. They intended to visit a few different properties and submit bids on projects. Defendant further testified that after the business day ended and traffic eased, he intended to drive to a medical marijuana collective in Los Angeles, of which he was a member, to trade some of the marijuana products for the marijuana that he smoked. He explained that he was a member of over 100 different collectives and the "trading" was a common thing he would do with many of them. The collectives generally did not order ahead of time; rather, defendant would travel to each with his products and the collectives "would pick and choose what they needed at that time." Defendant denied being in business to make a profit.
During closing argument, defense counsel argued that defendant's transportation of marijuana was legal under state laws concerning personal use of marijuana and laws permitting certain nonprofit collective or cooperative association for the cultivation and transportation of marijuana for medical purposes. The jury was instructed concerning the two statutory defenses — one under the Compassionate Use Act (§ 11362.5) and one under the state's Medical Marijuana Program (§ 11362.7 et seq.). The instructions read, in relevant part:
"Transportation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to . . . transport marijuana (for personal medical purposes . . . ) when a physician has recommended [or approved] such use. The amount of marijuana . . . transported must be reasonably related to the patient(s) current medical needs. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to . . . transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime. [¶] . . . [¶]
"[T]ransporting marijuana is lawful if authorized by the Medical Marijuana Program Act. The Medical Marijuana Program Act allows qualified patients to associate within the State of California to collectively or cooperatively . . . transport marijuana for medical purposes, for the benefit of its members, but not for profit. [¶] . . . [¶] Qualified patients associating collectively or cooperatively to cultivate marijuana for medical purposes for the benefits [sic] of its members may also transport marijuana when the transportation is reasonably related to the delivery to or from an authorized collective to which the Defendant is a member. In deciding if marijuana was transported lawfully, also consider whether the method, timing, and distance of the transportation were reasonably related to the delivery to and from an authorized collective. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to . . . transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime."
The jury rejected these defenses and found defendant guilty of transporting 28.5 grams or more of marijuana (§ 11360, subd. (a)). Defendant was given a suspended sentence and placed on three years of formal felony probation. He timely appealed.
II
DISCUSSION
Defendant argues that a legislative amendment to the statute under which he was convicted, made after his sentencing, requires that his conviction be reversed and the matter remanded for potential retrial under the amended statute. The Attorney General agrees that the statutory amendment applies to defendant, but asserts that reversal is not warranted because any error was harmless under both federal and state constitutional standards. We conclude reversal is warranted under the circumstances.
When defendant was convicted, former section 11360, subdivision (a), read: "[E]very person who transports . . . any marijuana shall be punished by imprisonment . . . for a period of two, three or four years." The term "transport" was not expressly defined, but courts had interpreted the statute as criminalizing all transportation, whether for personal use, sale or otherwise. (People v. Rogers (1971) 5 Cal.3d 129, 137.)
On January 1, 2016, after defendant was convicted and sentenced, a legislative amendment to section 11360 went into effect that narrowed the scope of the crime. Specifically, added language specified that, "[f]or purposes of this section, 'transport' means to transport for sale." (§ 11360, subd. (c).) With the amendment, a conviction under section 11360 would require the prosecution to prove an additional element beyond a reasonable doubt: that a defendant had a specific intent to sell. Among other things, transportation of marijuana for personal use would no longer constitute a violation of the statute. (See Sen. Com. on Public Safety, Analysis of Sen. Bill No. 730 (2015-2016 Reg. Sess.) February 25, 2015, p. 3 ["AB 730 will conform the definition of 'transportation' in the statutes overlooked during the consideration and enactment of AB 721, to specify that to 'transport' means to 'transport for sale,' not for personal use"].)
All parties agree, as do we, that the amendment to section 11360 is retroactive and applies to defendant pursuant to the principles set forth in In re Estrada (1965) 63 Cal.2d 740, 746-748 (Estrada). (See People v. Brown (2012) 54 Cal.4th 314, 323; People v. Babylon (1985) 39 Cal.3d 719, 725; People v. Rossi (1976) 18 Cal.3d 295, 301; People v. Eagle (2016) 246 Cal.App.4th 275, 279; People v. Ramos (2016) 244 Cal.App.4th 99, 103.)
Where the parties diverge is whether application of the amended statute in this case mandates reversal. Defendant contends that the addition of the new "for sale" element "so fundamentally changes the nature of the crime at issue" that reversal per se applies. The Attorney General asserts that harmless error principles should apply. Because we conclude that neither the state nor federal harmless error standard is met under the circumstances, we leave for another day the question of whether error per se or harmless error controls.
Under the United States Constitution, an error is generally considered harmless if the reviewing court concludes "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Under the California Constitution, an error is generally considered harmless unless it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) --------
To convict under the amended section 11360, the prosecution would need to prove beyond a reasonable doubt that defendant had the specific intent to sell the marijuana he was transporting, meaning he intended to exchange it for money, services or anything of value. (See People v. Peck (1996) 52 Cal.App.4th 351, 357 [sale of marijuana "'includes transfers other than for money'"], quoting People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845; CALJIC No. 12.21 [possession of marijuana for sale jury instruction defining "'sale'" as "any exchange of marijuana for cash, favors, services, goods or other non-cash benefits"]; CALJIC No. 12.22 [illegal sale of marijuana jury instruction defining "'sale'" in same manner].)
The Attorney General points to defendant's testimony explaining his intent to trade his products at a marijuana collective for marijuana he would smoke, arguing that this is conclusive evidence that defendant intended to "sell" the marijuana found in his car. Such an argument overlooks the fact that defendant's testimony was a result of a defense strategy adopted to defend against a charge that criminalized all types of transportation. Defendant's strategy may have been different had the prosecution borne the burden of proving the additional "intent to sell" element. We do not know what that strategy would have been, what additional evidence the prosecution would have presented, or what evidence, if any, defendant would have presented in response. With so much unknown, we cannot say beyond a reasonable doubt that the lack of the "for sale" element did not contribute to the jury's verdict. (Chapman, supra, 386 U.S. at p. 24.) Nor can we say that it is not reasonably probable that a result more favorable to defendant would have been reached had the prosecution borne the burden of proving the additional element. (Watson, supra, 46 Cal.2d at p. 836.)
The cases cited by the Attorney General are inapposite. A situation in which evidence of intent to sell was irrelevant at the time of trial, as is the case here, is fundamentally different than one in which a charge and elements of a crime are clear to the prosecution and defense, and the trial court simply fails to give a jury instruction on one or more of the elements of the crime. In the latter situation, a finding of harmlessness is premised on the notion that "the parties recognized the omitted element was at issue [and] presented all evidence at their command on that issue." (People v. Flood (1998) 18 Cal.4th 470, 506.) The record would be presumptively complete despite the omitted jury instruction. The same cannot be said when a particular element was not a requisite to conviction at the time of trial. The dissimilarity is particularly notable in cases such as this, where the prosecution (a) originally charged a crime that included a "for sale" element, and (b) strategically dismissed that charge before trial due to the complexity of the required evidence and the difficulty the prosecution believed it would have explaining the related matters to the jury.
Remand for retrial on the section 11360 charge is warranted under the circumstances. (See People v. Sandoval (2007) 41 Cal.4th 825, 843 [reversing and remanding for proper determination of truth of aggravating circumstances when that issue was not one litigated at trial]; People v. Balderas (1985) 41 Cal.3d 144, 197-200 [reversing conviction and remanding for retrial on robbery-murder special circumstance allegation in light of new intent to kill element]; People v. Figueroa (1993) 20 Cal.App.4th 65, 72 ["Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper . . . ."].) Even in a case such as this, where — as the Attorney General argues — a strong case could be made for a "transportation for sale" verdict, the defendant is entitled to a trial on that charge and the opportunity to revise his defense strategy.
III
DISPOSITION
Defendant's conviction is reversed and the case is remanded for further proceedings consistent with this opinion.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.