Opinion
C075594
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. YABAO LAI et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F01858)
This appeal involves the convictions of three appellants -- Yabao Lai, Sinh Van Pham, and Pham's wife, Lixia Ban -- for unlawfully growing large amounts of marijuana in four homes in Elk Grove and Sacramento. Specifically, a jury found appellants guilty of possession of marijuana for sale, conspiracy to cultivate marijuana, and unlawful cultivation of marijuana. At trial, the case involved more defendants who are not part of this appeal, including Guanmao Chen, Shunyi Chen, Mu Yang Li, Ivan Tu, and Fa Yin Xian.
On appeal, appellants raise issues about the sufficiency of evidence, instructions, the suppression of allegedly illegally obtained evidence, exclusion of defense evidence, ineffective assistance of counsel, and cumulative prejudice. They also request that if we do not grant them relief on any the foregoing claims, we should, at the very least, reduce their convictions from felonies to misdemeanors and/or remand the case to the trial court for resentencing under the provisions of the recently adopted Proposition 64. Finding no merit in any of these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A
Background Of Defendants/Appellants At The Four Grow Houses
In February 2013, Roy Keller, a narcotics detective with the Elk Grove Police, received a tip from a citizen informant who suspected that his neighbor on Tall Grass Way in Elk Grove was growing marijuana inside that house. Investigation into the registered owners of two cars that the neighbor saw at the Tall Grass Way house led police to a second suspected grow house on Creekside Circle in Sacramento, which was listed as the home address on Xian's vehicle registration. Consistent with marijuana grow houses, the exterior windows of both houses were tightly covered with blinds and both houses used large amounts of electricity (Tall Grass used 11,000 kilowatts per month and Creekside 8,000, and normal usage was 700 to 900 kilowatts per month for those size houses).
In March 2013, detectives put GPS trackers on cars registered to Guanmao Chen, Xian, and Pham. The GPS trackers showed vehicles coming and going from two additional houses in Sacramento, located on Atherton Street and Hardester Drive. The exterior windows of both houses were tightly covered with blinds. The Atherton house used 5,533 kilowatt hours per month of energy, and normal usage for that size house was 400 to 500 kilowatt hours per month. The Hardester house used a little over 300 kilowatt hours per month, an amount which triggered a SMUD investigation that revealed that power theft was occurring there.
More details about the whereabouts of the cars and of appellants/defendants are contained in the Discussion section that follows.
Based on this evidence, a search warrant was issued for all four grow houses on March 22, 2013. Police found a total of 1,759 marijuana plants from all four grow houses: 866 plants from Tall Grass, 387 from Creekside, 337 from Hardester, and 169 from Atherton.
B
The Tall Grass Grow House
(Fa Yin Xian And Guanmao Chen)
When the Tall Grass house was searched on March 22, 2013, Xian and Guanmao Chen were home. Both their wallets were in the living room, where it appeared they were living. Xian's wallet had a medical marijuana card. Chen also had a medical marijuana card. Chen was the SMUD subscriber to the house. Both Xian and Chen had medical marijuana recommendations written by Dr. R. David Ferrera, with permission to grow 99 plants per year and possess 16 pounds of processed marijuana per year.
The master bedroom, two upstairs bedrooms, and the garage were used to grow marijuana. In those rooms were light hoods, bulbs, charcoal filters, chemicals, fertilizer, and ballasts. Police found 866 marijuana plants in this house, which would yield about 216.5 pounds of marijuana, which would sell for about $433,000. It would take a heavy user 76.9 years to consume this amount.
There was no paraphernalia in the house that would be used to ingest the marijuana. There was a scale used to weigh items in quantities of up to a pound.
C
The Creekside Circle Grow House
(Sinh Van Pham And Lixia Ban)
When the Creekside Circle house was searched on March 22, 2013, police had to force entry in the house because Pham and Ban would not answer the door, although they were inside. The three upstairs bedrooms, the two-car garage, and the dining room had all been converted to indoor grow areas. There were ballasts, light hoods, light bulbs, and blowers in these rooms. Pham and Ban lived in the family room. Ban was the SMUD subscriber for that home. Both Pham and Ban had medical marijuana recommendations written by Dr. Ferrera, with permission to grow 99 plants per year and possess 16 pounds of processed marijuana per year. Police found 387 marijuana plants in the house (22.5 pounds of processed marijuana) that, if converted to consumable marijuana, would take a heavy user over 42 years to consume. The home also had a little over $3,000 in cash. There was no paraphernalia in the house that would be used to ingest the marijuana.
Pham and Ban had a safety deposit box with $42,100 cash. The safety deposit box also had three envelopes labeled "Ivan," with differing dollar amounts written on the front, including "3+5=8000."
Xian had his car registered at the Creekside house.
D
The Hardester Drive Grow House
(Ivan Tu And Shunyi Chen)
When the Hardester house was searched on March 22, 2013, police found one person inside -- Tu -- and his car parked in the garage. The SMUD subscriber to the house was Shunyi Chen. All three bedrooms of the house had been converted into marijuana grow rooms. Inside the rooms were blowers, ballasts, and chemicals. Part of the kitchen and dining room had been converted into the living/sleeping area. Police found 337 marijuana plants in the house that would take a heavy user 29.9 years to consume. Both Tu and Chen had medical marijuana recommendations written by Dr. Ferrera, with permission to grow 99 plants per year and possess 16 pounds of processed marijuana per year. There was no paraphernalia in the house that would be used to ingest the marijuana.
E
The Atherton Way Grow House
(Yabao Lai and Mu Yang Li)
When the Atherton house was searched on March 22, 2013, police found Lai and Li inside. The SMUD subscriber to the house was Lai. All three bedrooms of the house had been converted into marijuana grow rooms. There were light hoods, ballasts, filters, and blowers in the grow rooms. Police found 169 marijuana plants in the house that would take a heavy user 15 years to consume. The amount of processed marijuana those plants would yield would sell for $84,500. Lai had a medical marijuana recommendation written by Dr. Ferrera, with permission to grow 99 plants per year and possess 16 pounds of processed marijuana per year. There was no paraphernalia in the house that would be used to ingest the marijuana. In the living room was a bag containing $7,000 in cash. In the same living room was a bed and two sofas.
Li was acquitted on all charges.
Dr. Ferrera testified that he used a translator when speaking with Lai. With the use of that translator, Dr. Ferrera explained "some of the rules and regulations regarding growing" and "what the high yield recommendation for 99 plants would entail." He could not recall the language spoken by the translator or by Lai, and he had no way of knowing whether the translation was accurate.
F
Defense Evidence
Ban testified in her own defense. Ban withdrew money from the bank, which Pham used to buy soil, fertilizer, lights, and chemicals for growing marijuana. She moved these items into their Creekside home at least three times and cut the marijuana a few times. She did not use marijuana, but she did obtain a medical marijuana card "[b]ecause [she] was living there [i.e., the Creekside Circle house]." Pham was growing marijuana in the home for "medicinal use," but he used it only once (to soak his feet in).
G
Charges, Trial, and Resolution
All three appellants were charged with three felony counts: conspiracy to cultivate marijuana (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11358), possession of marijuana for sale (Health & Saf. Code, § 11359), and cultivation of marijuana (Health & Saf. Code, § 11358). Following a 15-day trial, a jury found all three appellants guilty of all three charges. The trial court placed all three of them on five years' probation with one year in jail. Each appellant filed a timely notice of appeal.
DISCUSSION
I
There Was Sufficient Evidence To Support Convictions For
Conspiracy To Cultivate Marijuana And Possessing Marijuana For Sale
Appellants contend there was insufficient evidence of conspiracy to cultivate marijuana because there was no evidence of an agreement to cultivate marijuana together. Ban also claims there was no evidence she agreed to violate the law.
Appellants further contend there was insufficient evidence of possession of marijuana for sale.
We take each contention in turn, finding no merit in any.
A
There Was Sufficient Evidence Of Conspiracy To Cultivate Marijuana
Appellants contend their convictions for conspiracy to cultivate marijuana must be reversed because there was no evidence they agreed to cultivate marijuana together. They argue there was no jointly conceived plan and the four grow houses operated independently of one another.
Contrary to appellants' argument, there was evidence of coordinated action by appellants and their codefendants to unlawfully cultivate marijuana together. (See In re Nathaniel C. (1991) 228 Cal.App.3d 990, 999 ["The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime" and "[t]he inference can arise from the actions of the parties, as they bear on the common design, before, during, and after the alleged conspiracy"].)
Ban conceded she knowingly helped her husband Pham grow marijuana at their Creekside house. She was the SMUD subscriber for that house. She admitted withdrawing money from the bank, which Pham used to buy soil, fertilizer, lights, and chemicals for growing marijuana. She moved these items into the house at least three times and cut the marijuana a few times. Their intent to unlawfully cultivate marijuana was evidenced by the amount of marijuana found at the grow houses, combined with the absence of paraphernalia for smoking or ingesting marijuana.
There was substantial evidence of coordinated action between Pham and Lai to unlawfully cultivate marijuana as well. Pham's car was tracked to Lai's Atherton grow house on March 9, 12, and 17, 2013. Pham was also there on March 15, 2013. Pham was also connected to the Tall Grass grow house on February 26, 27, and 28, where codefendants Xian and Guanmao Chen lived at the same time that the cars belonging to Xian and Chen were there. Pham's car was also tracked to the Hardester grow house occupied by codefendant Ivan Tu on March 19, 2013. Pham's safety deposit box that included papers for both Pham and wife Ban had three envelopes labeled "Ivan," with differing dollar amounts written on the front, including "3+5=8000."
Lai also had connections to codefendant Xian. Xian's car was tracked three times going to Lai's Atherton house. And Xian was linked to two of the other four grow houses as well: the Creekside grow house, which he listed as his residence on his car registration and at which he was seen four times, including one to help move potting soil at that house to a location where Pham and wife Ban had also been seen unloading potting soil; and to the Tall Grass grow house where he cultivated and harvested marijuana.
There was also evidence of coordinated action to unlawfully cultivate marijuana between Pham and wife Ban and codefendants Guanmao Chen, Tu, and Xian. On February 28, 2013, the police saw Pham and Ban unloading potting soil from Pham's car and move it to the side of their Creekside grow house. Then, codefendants Xian and Guanmao Chen arrived and helped Pham unload a box from the trunk of Pham's car to the side yard of the Creekside grow house.
Moreover, appellants and their codefendants acted with a common purpose and plan. One doctor, Dr. Ferrera, wrote all of the medical marijuana recommendations for each of them (appellants Pham, Ban, and Lai and codefendants Tu, Shuyi Chen, Guanmao Chen, and Xian), and those recommendations contained permission to grow the same amount of plants per year (99) and possess the same amount of pounds (16) of processed marijuana per year. The grow houses on Tall Grass, Creekside Circle, Hardester, and Atherton had the same setup: the bedrooms were converted into indoor grow areas and the growers slept in the dining room or living room. Similar grow equipment was used in each of the grow houses. Three of the four grow houses had the SMUD subscriber living at the house. And the exterior windows of all four grow houses were covered with blinds.
The foregoing evidence evinced an agreement among appellants and their codefendants to jointly grow marijuana.
Ban further contends her conviction must be reversed because there was insufficient evidence she agreed to violate the law. Not so. Ban testified she did not use marijuana, but she did obtain a medical marijuana card "because [she] was living there [i.e., the Creekside Circle house]." Although Ban testified Pham was growing marijuana in the home for "medicinal use," she further testified he used it only once. Moreover, the lack of any paraphernalia for ingesting marijuana, contrasted with the immense volume of marijuana found in the Creekside house (387 plants that, if converted to consumable marijuana, would take a heavy user over 42 years to consumes) and Ban's refusal to open the door when police showed up on March 22, all tend to show Ban knew she was growing marijuana unlawfully.
B
There Was Sufficient Evidence Of Possession Of Marijuana For Sale
Appellants contend their convictions for unlawfully possessing marijuana for sale must be reversed because there was no evidence of scales, pay/owe sheets, or packaging materials at the Creekside and Atherton homes. The lack of this evidence, however, does not mean the marijuana was not possessed for sale because there was sufficient other evidence that it was.
At the Creekside house where Pham and Ban lived, police found 387 marijuana plants that, if converted to consumable marijuana, would take a heavy user over 42 years to consume. And Bam and Pham were not users of marijuana -- Ban testified she did not use it at all, and Pham used it only once to soak his feet in it. They also were unemployed, yet had a lot of cash: a safety deposit box with $42,100 and a house with a little over $3,000 inside. The safety deposit box also had three envelopes labeled "Ivan," with differing dollar amounts written on the front, including "3+5=8000."
At the Atherton house where Lai lived, police found 169 marijuana plants that, if converted to consumable marijuana, would take a heavy user 15 years to consume. Although Lai had a medical marijuana recommendation, it was for only 99 plants per year and there was no paraphernalia to ingest marijuana at the Atherton house. There was also a bag with $7,000 in cash in the living room. These factors, including a large quantity of the drug compared to the drug's normal usage, are relevant to show intent to sell the drug. (People v. Parra (1999) 70 Cal.App.4th 222, 227.)
Lai makes two further arguments related to his conviction for possession of marijuana for sale that we address (and reject) now. One, he argues there needed to be evidence of a sellable product, and here the evidence was only of plants that would later produce a yield of sellable product. We reject this argument because Lai does not cite any authority and we have not found any authority to support it. Two, he argues there was no evidence he intended to sell the marijuana for profit. We reject this argument because, to the contrary, it was a logical inference that he had this intent given the $7,000 in cash found in his house in a bag in the living room.
II
The Trial Court Properly Refused To Instruct That The Compassionate Use Act
Was A Defense To Possessing Marijuana For Sale
Appellants contend the court erred in refusing to instruct that the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5, subd. (a)) was a defense to possession of marijuana for sale.
The trial court did instruct that the Compassionate Use Act was a defense to conspiracy to cultivate marijuana and cultivating marijuana and to the lesser included offenses of those crimes.
The Compassionate Use Act was approved by voter initiative in 1996 "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana . . . ." (Health & Saf. Code, § 11362.5, subd. (b)(1)(A).) The measure added Health and Safety Code section 11362.5, which provides an affirmative defense to prosecution for the crimes of possession and cultivation of marijuana. (People v. Dowl (2013) 57 Cal.4th 1079, 1085-1086; People v. Kelly (2010) 47 Cal.4th 1008, 1013.) The statute does not authorize the possession for sale or the sale of marijuana. (Health & Saf. Code, § 11362.5, subd. (b)(2); People v. Urziceanu (2005) 132 Cal.App.4th 747, 773.)
The Legislature enacted the Medical Marijuana Program Act (Health & Saf. Code, § 11362.7 et seq.) in 2003 to address additional issues that were not included within the Compassionate Use Act. (People v. Wright (2006) 40 Cal.4th 81, 93.) The Medical Marijuana Program Act provides an affirmative defense to the crime of possessing marijuana for sale by persons entitled to the protections of the Compassionate Use Act, but it does not authorize the distribution of marijuana for profit. (Health & Saf. Code, §§ 11362.7, subds. (f), (g), 11362.765, subds. (a), (b).) As is relevant here, the Medical Marijuana Program Act "provides a new affirmative defense to criminal liability for qualified patients, caregivers, and holders of valid identification cards who collectively or cooperatively cultivate marijuana." (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1171.)
"A defendant invoking the [Medical Marijuana Program Act ] as a defense bears the burden of producing evidence in support of that defense." (People v. Solis (2013) 217 Cal.App.4th 51, 57.) "[T]he essential elements of the collective cultivation defense as (1) qualified patients who have been prescribed marijuana for medical purposes, (2) the patients collectively associate to cultivate marijuana, and (3) the patients are not engaged in a profit-making enterprise." (People v. Orlosky (2015) 233 Cal.App.4th 257, 269.)
With regard to the collective cultivation defense, "the jury must determine whether the collective [the defendant] participates in is a profit-making enterprise and further . . . in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective's membership, the volume of purchases from the collective and the members' participation in the operation and governance of the collective." (People v. Jackson 210 (2012) Cal.App.4th 525, 530.) Here, there was no evidence regarding any of these factors or whether the alleged cooperative made a profit. Thus, there was no duty to instruct the jury on the collective cultivation defense.
III
The Trial Court Was Not Required To Instruct On Mistake Of Fact Or Law
The trial court denied Lai's request to instruct on mistake of fact on the following two theories: (1) Lai mistakenly believed he could legally have the marijuana plants because he was growing for a collective; and (2) Lai was mistaken as to "what the [medical marijuana] recommendation was." On appeal, Lai contends the trial court should have instructed on mistake of fact based on his "understanding, or lack thereof, of what was written on the marijuana recommendation."
In addition, appellants argue the trial court erred by failing to instruct on mistake of law as a defense to conspiracy to cultivate marijuana and possession of marijuana for sale, which are both specific intent crimes.
Finally, Pham argues that his counsel was ineffective for failing to request an instruction on mistake of law.
We take each contention in turn, finding no merit in any.
A
Lai Did Not Present Evidence That He Was Mistaken About A Fact, Which If True,
Would Have Negated An Element Of Conspiracy Charge Or Possession For Sale Charge
Lai contends the court erred in denying his request for an instruction on mistake of fact based on his belief he was growing marijuana for a collective. The trial court correctly ruled that Lai's belief he was growing for a collective was a mistake about legal rights, so it did not support a mistake of fact instruction. (See People v. Young (2001) 92 Cal.App.4th 229, 237 [a defendant's mistaken belief that the Compassionate Use Act applied to his act of transporting marijuana "was a misapprehension of the law that does not provide him with a defense"].)
As to Lai's contention that the trial court should have instructed that Lai was mistaken as to "what the [medical marijuana] recommendation was," he explains on appeal this was his "understanding, or lack thereof, of what was written on the marijuana recommendation." The problem with the argument is that Lai did not testify or offer any other evidence that he misunderstood the medical marijuana recommendation from Dr. Ferrera. The most Dr. Ferrera testified to was the following: that he used a translator when speaking with Lai; with the use of that translator, Dr. Ferrera explained "some of the rules and regulations regarding growing" and "what the high yield recommendation for 99 plants would entail"; he could not recall the language spoken by the translator or by Lai; and he had no way of knowing whether the translation was accurate. This was not evidence that there actually was any misunderstanding.
B
The Trial Court Did Not Have To Instruct On Mistake Of Law As A Defense To
Possession Of Marijuana For Sale And Conspiracy To Cultivate Marijuana
The crime of possession of marijuana for sale is a specific intent crime that requires the intent to sell the drug. However, a defendant's "good faith mistake of law . . . [is] not a defense to the crime of selling marijuana." (People v. Urziceanu, supra, 132 Cal.App.4th at p. 775.) But, mistake of law can be a defense to conspiracy to cultivate marijuana. (Ibid.) In Urziceanu, the "defendant's mistake that his formation and operation of FloraCare complied with the Compassionate Use Act was a mistake of law." (Urziceanu, at p. 776.) The defendant "presented evidence that he contacted law enforcement officers and public officials to ensure that his operation met the requirements of the Compassionate Use Act and attempted to cooperate with the police and authorities in an effort to bring his organization in line with the Compassionate Use Act." (Urziceanu, at p. 779.)
Here, by contrast, appellants did not introduce any evidence of a good faith mistake of law. They did not present evidence they were part of a collective, that the collective was not for profit, and that the amount of marijuana grown was reasonable for the needs of the collective's members. (People v. Urziceanu, supra, 132 Cal.App.4th at pp. 763, 765.)
Specifically, too, as it relates to Ban, a mistake of law as to the conspiracy to cultivate marijuana charge would have been contrary to her defense, which was another reason the court was correct in not giving it. (See People v. Barton (1995) 12 Cal.4th 186, 195 ["a trial court's duty to instruct . . . on particular defenses . . . aris[es] 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case' "].) Ban's theory of the case was that while she knew her husband was growing marijuana at their house for his own medicinal use, she did not really help out with it, other than carrying some soil and trimming the plants a few times.
C
There Was No Ineffective Assistance Of Counsel
Pham argues that his counsel was ineffective for failing to request an instruction on mistake of law. Counsel's failure to ask for an instruction that mistake of law can negate the specific intent required for conspiracy to cultivate marijuana was not deficient because there was no evidence to support it, as we explained in part IIIB. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [deficient performance is the first prong of an ineffective assistance of counsel claim].)
IV
The Trial Court Properly Denied Appellants' Motion To Suppress Evidence Of
Electricity Usage At The Grow Houses Obtained By SMUD Without A Warrant
Pham and Lai contend the trial court erred in denying Pham's motion to suppress evidence of the electrical usage (in the form of SMUD records) for the grow houses obtained by SMUD and given to police without a warrant. They further argue that to the extent their attorneys did not move to exclude all the fruits of the allegedly illegal search, their attorneys were ineffective. We disagree, based on the case the trial court also found was on point.
In People v. Stanley (1999) 72 Cal.App.4th 1547, the police suspected the defendant was diverting power to grow marijuana within his residence, which was shrouded by foliage. (Id. at pp. 1550-1551.) The police persuaded power company officials to install a power usage meter on a power pole located within the curtilage of the residence. (Id. at p. 1551.) Rejecting the defendant's argument that the use of the meter violated his reasonable expectation of privacy, the appellate court wrote: "[A]ppellants demonstrated no actual, subjective expectation of privacy in the devices used by the utility to deliver electricity to Stanley's house. The poles, wires, transformers, and meters were owned and maintained by the utility. These devices are in plain view. There can be no expectation of privacy in the equipment used by the utility to deliver power to the house. Moreover, the electricity delivered by the utility is measured by a meter routinely monitored by its employees. The usage reflected by the meter is recorded in utility company records and billed to Stanley." (Id. at pp. 1552-1553.)
Here, as in Stanley, appellants lacked a reasonable expectation of privacy in the readings of their electrical meters or the quantity of electricity being delivered to their houses. This case presents a more innocuous version of what happened in Stanley because there were no additional devices installed to help read meters that were already on appellants' properties and on which SMUD already keeps records.
Recent cases from the United States Supreme Court do not change the persuasiveness of Stanley. Those cases involve situations not present here. For example, the government's use of thermal imaging, "a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion," was held to be a Fourth Amendment violation. (Kyllo v. United States (2001) 533 U.S. 27, 40 [150 L.Ed.2d 94, 106].) Here, however, the details of the power usage were already known to SMUD, were already being recorded by SMUD and appellants knew that, and SMUD's readings that it turned over to the police required no physical intrusion by police. In United States v. Jones (2012) 565 U.S. 400, 403-404 [181 L.Ed.2d 911, 917-918], the government's trespass on private property to attach a global positioning device to the car to monitor the vehicle's movement was a search; although the defendant had no reasonable expectation of privacy on a public street, the trespass on constitutionally protected private property to gain the information constituted the unlawful search. In contrast, the SMUD meters were already on appellants' properties with their permission, and the government was not asking SMUD to acquire anything different than it already had collected in its records.
Here, police obtained a warrant to install the GPS tracking device.
Since there was nothing illegal about the search of the SMUD records, there were no "fruits of the poisonous tree" that the trial attorneys should have also moved to exclude.
V
The Court Did Not Abuse Its Discretion Or Deny Lai His Right To Present A Defense
By Excluding Evidence That A Third Party's Medical Marijuana Recommendation
Was Found By Police In The Atherton House
Lai contends the trial court violated his right to present a defense when it excluded evidence of a medical marijuana recommendation for one Yaren Xiang that was found by police during their search of the Atherton grow house. The Xiang medical marijuana recommendation was issued by Dr. Ferrera and authorized her to grow up to 99 plants and possess 16 pounds of processed marijuana for her medical needs.
As he argued in the trial court, Lai argues this evidence was necessary to show third party culpability and that he was part of a collective, as he and Xiang were each entitled to have 99 plants at the house.
The trial court was well within its discretion to exclude the evidence as third-party culpability evidence because it did not meet the threshold for admission of this evidence. (See People v. Elliott (2012) 53 Cal.4th 535, 581 [standard of review].) "To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability . . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall (1986) 41 Cal.3d 826, 833.) This medical marijuana recommendation at the Atherton grow house had no tendency in reason to prove Xiang committed the crimes with which Lai was charged (possession of marijuana for sale, conspiracy to cultivate marijuana, and cultivating marijuana). There was nothing tying her to the grow houses, such as her being at the house, her car being at the house, her name on a utility record, or her knowledge of any people connected to the house.
The trial court also did not violate defendant's right to present a defense by excluding the evidence that Yaren Xiang's medical marijuana recommendation was found in the Atherton house for some proof that Lai was part of a collective. As we have noted, the collective cultivation defense requires "the jury must determine whether the collective [the defendant] participates in is a profit-making enterprise and further . . . in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective's membership, the volume of purchases from the collective and the members' participation in the operation and governance of the collective." (People v. Jackson, supra, 210 Cal.App.4th at p. 530.) Evidence simply that the Atherton house contained a medical marijuana recommendation of some third party, without any evidence of who this third party was and how she was tied to the house or grow operation, did not provide any evidence that this party was part of a collective inside the Atherton grow house or provide any evidence that, as Lai clams, he believed he was part of a collective, thereby going to his mistake of fact or law defense regarding being part of a collective.
VI
Trial Counsel Were Not Ineffective For Failing To Object To Certain Testimony From
Dr. Ferrera And Two Of The Police Expert Witnesses
Lai and Pham contend the trial court erred by permitting Dr. Ferrera, Detective Keller, and Detective Gabriel Ramos to testify regarding "statutory definitions and ultimate conclusions of law," which they claim were irrelevant evidence that had a high likelihood of confusing the jury and undermining their defense. Since there were no objections on these grounds, Lai and Pham contend their trial attorneys were ineffective.
The testimony about which Lai and Pham complain was the following:
Dr. Ferrera testified (on direct examination after being called by Pham's attorney as a defense witness) that Sacramento city ordinances require that medical marijuana patients who are cultivating marijuana grow it inside, provide filtration and ventilation systems, and shield the marijuana from public view, meaning it cannot be seen from the street. On cross-examination by the prosecutor, Dr. Ferrera testified that he advised patients that "Federal law says over a hundred plants is a felony to [his] understanding." Using Lixia Ban as an example, if she had a 99-plant recommendation and officers found 387 plants, that would exceed his recommendation as to what was medically necessary for her. As cohabitants, Ban and Pham together have a recommendation for a total of 198 plants and an amount over that would be over the amount medically necessary for both of them.
Expert witness Elk Grove Narcotics Detective Gabriel Ramos testified in response to cross-examination from Ban's lawyer that the city of Elk Grove has ordinances that prohibit marijuana from being grown outside and testified in response to cross-examination from Pham's lawyer that those ordinances also require ventilation and filtration systems, blowers, lights and ballasts, all of which were found at the Creekside house.
Expert witness Roy Keller, a narcotics detective with the Elk Grove Police Department testified in response to cross-examination from Lai's lawyer that it was not relevant to him to ask his officers whether defendants had a collective together or whether Lai had been told he had a collective "[b]ecause there's not a true collective. They've got to file articles of incorporation with the State of California to become a collective or cooperative."
As noted, there was no objection to this testimony as irrelevant, confusing to the jury, or undermining the defense. But, contrary to Lai and Pham's argument, the lack of objection was not deficient performance. Trial counsel had good reasons not to object to this testimony, as it could be viewed as helpful to the defense. (See People v. Wright (1990) 52 Cal.3d 367, 412 [reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel].)
As to the testimony about the Sacramento ordinances requiring indoor growing with certain equipment, trial counsel well may have viewed this evidence as illustrating to the jury that the indoor grow houses with their tightly screened exteriors were necessary to comply with local law, not to hide an illegal grow operation (to negate a consciousness of guilt).
As to the testimony about what federal law prohibits and what Dr. Ferrera viewed as excessive marijuana over the 99 plants per patient, trial counsel may have seen no point in objecting because federal law was not at issue, so there was no reason to object and further bring that to the jury's attention.
As to the testimony about this grow operation not being a true collective, the point of the questions and answers regarding the police officer's opinion about whether this was a collective was to undermine the police investigation that Lai's attorney claimed was biased in favor of finding defendants were illegally growing the marijuana, without regard to whether defendants thought they were part of a collective. This is clear from Lai's counsel's follow-up question to Detective Keller: "[W]ould you agree that in an unbiased investigation it would be important to investigate whether or not Mr. Lai was under the assumption he was growing in a collective?" Detective Keller answered "In this case, no." Thus, the testimony could been seen as helpful to Lai to make his point that regardless of whether police saw this as a true collective, Lai himself did not have any criminal intent.
VII
There Was No Cumulative Prejudice
Lai contends that the errors he has alleged must be evaluated for their cumulative prejudicial effect and that together those errors violated his due process right to a fair trial. We have found no errors, so there are none to accumulate.
VIII
Proposition 64
In November 2016, while these appeals were pending, the voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (the Adult Use of Marijuana Act), establishing a comprehensive system to legalize, control, and regulate nonmedical marijuana. (Prop. 64, §§ 1, 3.) Among other things, Proposition 64 amended sections 11358 and 11359 of the Health and Safety Code to reduce the punishment for cultivating more than six marijuana plants and for possessing marijuana for sale. (Prop. 64, §§ 8.2 & 8.3.) Both of those crimes are now generally punishable as misdemeanors, except that they may be punished as felonies under certain circumstances. (Health & Saf. Code, §§ 11358, subds. (c) & (d), 11359, subds. (b) & (c).) The reduction in the punishment for cultivating more than six marijuana plants also served to potentially reduce the punishment for conspiring to commit that crime because while conspiracy to commit a felony is generally punishable the same as the felony that was the subject of the conspiracy, conspiracy to commit a misdemeanor may be punished as a felony or a misdemeanor. (See Pen. Code, § 182; People v. Campbell (1934) 1 Cal.App.2d 109, 113-.)
In addition to the foregoing, section 8.7 of Proposition 64 added section 11361.8 to the Health and Safety Code. As relevant here, that statute provides that "[a] person currently serving a sentence for a conviction . . . who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall . . . of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . in accordance with Sections 11357, [and] 11358 . . . as those sections have been amended . . . by that act." (Health & Saf. Code, § 11361.8, subd. (a).) "Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy that criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence . . . because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (Id., subd. (b).)
Following the passage of Proposition 64, we granted appellants permission to file supplemental briefs on the effect of Proposition 64 on this case. They now argue that they are entitled to the ameliorative effects of the new law on their convictions. Specifically, Lai contends we should remand the case to the trial court "with orders to reduce the convictions for cultivation and possession for sale to misdemeanors, and to permit the judge to consider whether to treat the conspiracy conviction as a felony or a misdemeanor." For their part, Pham and Ban contend that we should reduce their convictions for cultivation and possession for sale to misdemeanors and remand the case to the trial court for that court to determine whether to treat their conspiracy convictions as felonies or misdemeanors. Each appellant contends that because their convictions are not yet final, they are entitled to the benefits of the new law under the principles set forth in In re Estrada (1965) 63 Cal.2d 740.
Less than a year ago, in People v. Conley (2016) 63 Cal.4th 646 (Conley), our Supreme Court explained how Estrada applies in a case like this, where the electorate has amended the law to reduce the punishment for certain offenses but, at the same time, has provided a specific mechanism for persons presently serving sentences for those crimes to seek to obtain the benefit of the change in the law. At issue in Conley was the Three Strikes Reform Act of 2012 (the Reform Act), approved by the voters as Proposition 36, "which amended the law to reduce the punishment prescribed for certain third strike defendants." (Conley, at p. 651.) Much as in Proposition 64 here, "[i]n the Reform Act, the voters . . . established a procedure for 'persons presently serving an indeterminate term of imprisonment' under the prior version of the Three Strikes law to seek resentencing under the Reform Act's revised penalty structure." (Conley, at p. 653.) Similar to Proposition 64, the Reform Act authorized the filing of a petition for a recall of a sentence by a defendant serving a sentence under the prior version of the law who would have qualified for a shorter sentence under the new version of the law. (Conley, at p. 653.) "If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law," taking into consideration certain disqualifying factors, the petitioner is entitled to resentencing " 'unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (Conley, at p. 653, quoting Pen. Code, § 1170.126, subd. (f).)
After the Reform Act was enacted during the pendency of the appeal in Conley, the defendant in that case asked this court (before which his appeal was pending) "to vacate his sentence and remand the matter to the trial court for resentencing under the new sentencing provisions of the Three Strikes law." (Conley, supra, 63 Cal.4th at pp. 646, 655.) This court declined to do so, holding that while, under Estrada, "courts ordinarily presume that newly enacted legislation lessening a criminal punishment is intended to apply 'to all cases not yet reduced to final judgment on the statute's effective date,' " that presumption did not apply to the defendant's case "because the Reform Act includes a procedure whereby 'persons presently serving an indeterminate term of imprisonment [under the Three Strikes law]' [citation] may file a petition for recall of sentence." (Conley, at p. 655.) "Observing that this provision does not distinguish between persons serving final sentences and those serving nonfinal sentences, [thi]s court concluded that '[t]hose already sentenced and serving an indeterminate term of imprisonment must petition the trial court for a recall of sentence regardless of whether or not their judgment is final.' " (Ibid.)
On review, the Supreme Court affirmed this court's decision. (Conley, supra, 63 Cal.4th at p. 662.) The court explained that "[b]ecause the Estrada rule reflects a presumption about legislative intent, rather than a constitutional command, the Legislature (or here, the electorate) may choose to modify, limit, or entirely forbid the retroactive application of ameliorative criminal law amendments if it so chooses." (Conley, at p. 656.) The court then explained why "the voters who passed the Reform Act did not intend to authorize automatic resentencing for third strike defendants serving nonfinal sentences imposed under the former version of the Three Strikes law." (Conley, at p. 657.) First, the court noted that "the Reform Act is not silent on the question of retroactivity" because it "expressly addresses the question in section 1170.126," the provision that "creates a special mechanism that entitles all persons 'presently serving' indeterminate life terms imposed under the prior law to seek resentencing under the new law." (Conley, at p. 657.) The court went on to hold that "[w]here. . . the enacting body creates a special mechanism for application of the new lesser punishment to persons who have previously been sentenced, and where the body expressly makes retroactive application of the lesser punishment contingent on a court's evaluation of the defendant's dangerousness, we can no longer say with confidence, as we did in Estrada, that the enacting body lacked any discernible reason to limit application of the law with respect to cases pending on direct review. On the contrary, to confer an automatic entitlement to resentencing under these circumstances would undermine the apparent intent of the electorate that approved section 1170.126 . . . . [G]iven that section 1170.126, by its terms, applies to all prisoners 'presently serving' indeterminate life terms, we can discern no basis to conclude that the electorate would have intended for courts to bypass the public safety inquiry altogether in the case of defendants serving sentences that are not yet final." (Conley, at pp. 658-659.)
The foregoing reasons apply with equal force here with respect to Proposition 64. Like Penal Code section 1170.126, Health and Safety Code section 11361.8 provides a special mechanism for applying the ameliorative benefits of the new law to persons sentenced under the old law, whether those sentences are final, and that special mechanism requires a person sentenced under the old law who seeks the benefit of the new law to file a petition in the sentencing court. The fact that the electorate expressly created this special mechanism shows that the electorate did not intend to authorize automatic resentencing for those defendants subject to nonfinal sentences imposed under the law that was in effect before the passage of Proposition 64.
Although none of the appellants raises the point, we note that the petitioning procedure in Health and Safety Code section 11361.8, subdivision (a) specifically applies to "[a] person currently serving a sentence." (Italics added.) Because all three appellants here were granted probation, it could be argued that none of them is "serving a sentence" and that, therefore, they are not entitled to seek petition for recall of sentence under Health and Safety Code section 11361.8. Interpreting identical language in Proposition 47, however, the court in People v. Davis (2016) 246 Cal.App.4th 127, review granted July 13, 2016, S234324, held that "persons on probation are 'serving a sentence' for purposes of [Proposition 47]." (Davis, at p. 133.) We find Davis persuasive on this point (see Cal. Rules of Court, rule 8.1115(e)(1) ["[p]ending review . . . , a published opinion of a Court of Appeal . . . may be cited for . . . persuasive value"]), and in the absence of any contrary argument from appellants conclude that they are entitled to petition for recall of sentence under Health and Safety Code section 11361.8 even though they are on probation only.
The arguments appellants offer in opposition to this conclusion are not persuasive. For his part, Lai first contends "Proposition 64 does not contain an explicit provision dictating either prospective or retroactive application of the proposition," but on that point he is clearly wrong. The special mechanism in Health and Safety Code section 11361.8 is such a provision because it dictates exactly how Proposition 64 is to apply retroactively, just as Penal Code section 1170.126 did with respect to the Reform Act.
Next, Lai contends "retroactive application of Proposition 64 is fully consistent with the intent of the voters" because "[t]he arguments [in support of the proposition] emphasized the cost savings and revenue generation inherent in the new regulatory scheme, but also emphasize[d ]an intent to divert law enforcement money away from felonious punishment for most marijuana cultivation and sales," and "[t]hese goals are furthered by applying the proposition to the greatest number of the defendants who are otherwise not disqualified from relief under this proposition." According to Lai, "requiring defendants like [him] to rely only on the Health and Safety Code section 11361.8 procedure would increase spending for legal representation for filing and litigating sentence recall petitions, and for judicial and support staff time required to decide such petitions. This would subvert the intent of the voters to divert resources away from 'ruining people's lives for marijuana.' "
This argument lacks merit because the plain terms of Health and Safety Code section 11361.8 provide a far more reliable indication of the intent of the voters with respect to the retroactive application of the new lesser punishment to persons previously sentenced under the old law than the general goals of the proposition as a whole identified in arguments offered in support of the proposition. Moreover, the intent implicit and discernible in Health and Safety Code section 11361.8 was actually stated in the proposition itself, which provided that it was "the intent of the people in enacting this act to accomplish the following: [¶] . . . [¶] (z) Authorize courts to resentence persons who are currently serving a sentence for offenses for which the penalty is reduced by the act, so long as the person does not pose a risk to public safety . . . ." (Prop. 64, § 3, subd. (z).) This explicit statement of the voters' intent on the specific point at issue here trumps any general expressions of intent in the arguments supporting passage of the proposition.
Turning specifically to Conley and Proposition 36, Lai contends that "[a]lthough Health and Safety Code section 11361.8 bears similarities to . . . Penal Code section 1170.126, the intent and language of the two initiative measures are very different." According to Lai, the Reform Act "evidenced a strong concern for protecting public safety" relating to the potential early release of dangerous criminals, while "the offenses at issue [under Proposition 64] are inherently nonviolent, and the public safety concerns evidenced by the voter pamphlet are less about the release of potentially violent criminals and more about regulation of marijuana sales for the protection of children." Lai further observes that "section 11361.8 provide[s] for presumptive eligibility" for resentencing that is not present in section 1170.126 of the Penal Code.
What Lai fails to account for, however, is that just like the special mechanism in Penal Code section 1170.126, the special mechanism in Health and Safety Code section 11361.8 requires a court considering a petition for recall of sentence to determine whether granting the requested relief "would pose an unreasonable risk of danger to public safety." (Compare Pen. Code, § 1170.12, subd. (f) with Health & Saf. Code, § 11361.8, subd. (b).) In other words, under both statutes, whether the new, lesser punishment will apply retroactively ultimately depends on a risk assessment that is to be conducted by the sentencing court. If we were to conclude that Estrada applies here, and that defendants with nonfinal sentences under the prior law are automatically entitled to the benefits of the new law, we would deprive the sentencing courts of the opportunity to conduct the risk assessments that the voters specifically intended the sentencing courts to conduct. We simply do not have the power to do that, as we would have to essentially rewrite the law to do so.
For his part, Pham contends that "[a]pplication of Conley might appear to require that Pham file a new petition under Health and Safety Code section 11361.8, but a new filing is unnecessary" because "this direct appeal is the most expedient method of addressing the Proposition 64 issue." According to Pham, because he has no criminal record, and because the record on appeal does not "show that he is a 'danger to the public' according to Proposition 64's narrow definition," we "can simply order the felony reduced to a misdemeanor." In other cases, "where more factual questions exist," Pham contends an appellate court "should remand the case for the superior court to consider the Proposition 64 claim without the need to file a new petition."
In making the foregoing arguments, Pham -- much like Lai -- mistakes the extent of our power. We cannot give Pham a remedy not provided for in the law just because that remedy might be more expedient than the one the voters adopted. Our role here is to determine what the intent of the voters was with respect to the retroactivity of the lesser punishments provided in Proposition 64, and that intent is to be found in the terms of the provision the voters adopted: Health and Safety Code section 11361.8. That statute expressly gives the sentencing court the power to make the public safety determination in the first instance, and only then when a defendant seeking the benefit of the lesser punishment under the new law files a petition for recall of sentence. While it may not be as expedient as he would like, Pham must pursue the remedy the voters expressly provided for him, rather than asking this court to create its own remedy.
To the extent Pham contends requiring him to use the special mechanism in Health and Safety Code section 11361.8 to obtain the benefit of the new, lesser punishment denies him equal protection of the laws because a person sentenced after the passage of Proposition 64 will not have to use that mechanism and therefore will not be subject to a determination as to whether imposition of the lesser punishment would pose an unreasonable risk of danger to public safety, we reject that contention based on our Supreme Court's decision in People v. Floyd (2003) 31 Cal.4th 179. There, in response to a similar argument, the court explained that giving a new sentencing scheme that provides for lesser punishment completely prospective application does not violate equal protection. (Id. at pp. 188-191.) " 'The Legislature properly may specify that such statutes are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.' " (Id. at p. 188, quoting In re Kapperman (1974) 11 Cal.3d 542, 546.) If a new statute providing for lesser punishment can constitutionally be made completely prospective, then certainly the electorate has the power -- as it did in Proposition 64 -- to provide for qualified retroactive application, by making the retroactive application of the new punishment subject to a determination of whether extending that punishment to a defendant originally sentenced under the old law would pose an unreasonable risk of danger to public safety. Thus, no equal protection violation has been shown.
Finally, for her part Ban offers an argument similar to Pham's: she contends that this court "addressing the reductions authorized by Proposition 64 here would be the most expeditious and economical method [of] proceeding." Even if that is true, however, as we have explained, we have no power to substitute our own remedy in place of the remedy expressly adopted by the voters just because ours would be more expedient. The only question here is whether the lesser punishments provided for in Proposition 64 apply retroactively and, if so, how. The answer to that question is to be found in Health and Safety Code section 11361.8, and nowhere else. If appellants want to seek the benefits of the new law, they must do so in the sentencing court, by filing petitions to recall their sentences pursuant to Health and Safety Code section 11361.8. Accordingly, we reject their requests that we modify their sentences and/or remand the case to the trial court for that court to do so in the absence of any petition seeking that relief.
DISPOSITION
The judgments (orders granting probation) are affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Blease, J.