Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F07429
ELIA, J.In 2005, appellant Roger Mentch was convicted of one count of cultivation of marijuana (Health & Saf. Code, § 11358, count one) and one count of possession of marijuana for sale (§ 11359, count two). The jury found true an allegation that in the commission of these offenses appellant was armed with a firearm, to wit, rifles. (Pen. Code, § 12022, subd. (a)(1).) Mentch appealed his conviction raising a total of 10 claims of error by the trial court.
Unless specified, all statutory references are to the Health and Safety Code.
In addition, the jury found appellant not guilty of the manufacture of concentrated cannabis (§ 11379.6, subd. (a), count three) and possession of concentrated cannabis (§ 11357, subd. (a), count four), but guilty of possession of psilocybin mushrooms (§ 11377, subd. (a), count five).
This court reversed the judgment on the sole ground that the trial court erroneously failed to instruct the jury on the primary caregiver defense provided by the Compassionate Use Act of 1996 (hereafter the CUA) (§ 11362.5). The California Supreme Court granted review to consider who may qualify as a primary caregiver. (People v. Mentch (2008) 45 Cal.4th 274, 277 (Mentch).) The Supreme Court held that Mentch did not qualify as a primary caregiver under the Act and reversed this court's judgment. (Mentch, supra, 45 Cal.4th at pp. 289-290.)
The Supreme Court's opinion in Mentch, supra, 45 Cal.4th 274, left unresolved seven issues that we did not address in our first opinion in this case. Accordingly, we resolve those issues now.
Remaining Issues
1. Did the trial court err in failing to provide a sua sponte instruction regarding safe harbor quantities of marijuana under Santa Cruz County guidelines?
2. Did the trial court err in failing to provide sua sponte instructions regarding the defense of lawful marijuana association?
3. Did the trial court err by failing to instruct sua sponte on a mistake of law defense?
4. Did the trial court err in admitting evidence that a Baretta pistol was found locked in Mentch's safe?
5. Did the trial court err in excluding evidence that Mentch claims was relevant to his defense?
6. Did the trial court err in failing to modify CALJIC No. 17.15 to require a facilitative nexus between the rifles and marijuana found in Mentch's home?
7. Does the cumulative effect of all these alleged errors require reversal of Mentch's convictions?
For reasons that follow, we affirm the judgment.
We take the facts directly from the Supreme Court's opinion in People v. Mentch, supra, 45 Cal.4th 274, except where we need to supplement the facts in light of the issues presented in this court.
"Prosecution Evidence
"Heidi Roth, a teller at Monterey Bay Bank, testified that she became familiar with Mentch over the period of February to April 2003. Mentch came to the bank on several occasions and made large deposits of cash in small bills, each deposit totaling over $2,000. Roth noticed that some of the money Mentch deposited smelled so strongly of marijuana that the smell filled the bank, and the bank had to remove the money from circulation. The total amount Mentch deposited with the bank over a two-month period was $10,750. On April 15, 2003, Roth filed a suspicious activity report with the Santa Cruz County Sheriff's Office, relating the questionable nature of Mentch's deposits.
"After further investigation, the sheriff's office obtained a warrant to search Mentch's house for marijuana. On June 6, 2003, Mark Yanez, a narcotics investigator, and four deputies went to Mentch's house to serve the warrant. When Mentch opened the door, Yanez told him they had a warrant to search his house for marijuana. Mentch told Yanez that he had a medical recommendation for marijuana. A search of Mentch's person turned up $253 in cash and a small vial of hash oil, or concentrated cannabis. Yanez advised Mentch of his rights and interviewed him in a police vehicle parked outside Mentch's residence.
"Mentch told Yanez he had a medical marijuana recommendation for colitis, dysphoria, and depression, and that he smoked about four marijuana cigarettes, totaling approximately one-sixteenth of an ounce, per day for medicinal purposes. When Yanez asked Mentch if he sold marijuana, Mentch responded that he sold it to five medical marijuana users.
"A search of Mentch's residence revealed several elaborate marijuana growing setups. In various rooms of the house, the deputies found 82 marijuana plants in the flowering or budding stage, 57 'clone' marijuana plants, 48 marijuana plants in the growing or vegetative stage, and three 'mother' plants, which Yanez opined were likely the female plants from which clippings were taken to make the clone plants. Considering the evidence seized from Mentch's bank and residence, as well as his statement to Yanez, Yanez opined that while Mentch may have personally consumed some of the marijuana he grew, his operation was primarily a for-profit commercial venture." (Mentch, supra, 45 Cal.4th at pp. 278-279.)
When appellant unlocked his safe for the deputies, they discovered a loaded, but locked Baretta.40 caliber semiautomatic handgun. Inside a closet in the living room, deputies found an unloaded.22 caliber pump-action rifle. In another room, deputies found an unloaded.22 caliber bolt-action rifle leaning against the wall. On cross-examination, Yanez confirmed that the search failed to locate any ammunition for the rifles. In the living room, deputies found a functioning Taser gun on a television stand near the front door.
During their search of Mentch's residence, deputies discovered video surveillance cameras set up to record the front entrance to the house and the hallway outside one of the rooms on the first floor. The door of the room under surveillance was padlocked on the outside. Posted on the wall next to the door were several documents including a certificate in Mentch's name from the Oakland Cannabis Buyers' Club, dated September 6, 2001. In addition, a physician's statement by Dr. Richard A. Hanson, dated September 6, 2001 listed Mentch's conditions as colitis and depression. A medical marijuana recommendation from Dr. Thomas J. O'Connell dated July 24, 2002, listed Mentch's conditions as insomnia, dysphoria, alcohol abuse, diarrhea, attention deficit disorder, and colitis.
Defense Evidence
"Leland Besson testified that he had known Mentch for two years. In June 2003, Besson was on disability and had a medical marijuana recommendation for a bad back, neck, and joints. At the time, he was smoking approximately two to three grams of marijuana a day. For about one year before Mentch was arrested, Besson purchased his marijuana exclusively from Mentch, who knew about Besson's medical marijuana recommendation. Mentch supplied medical marijuana through his business, the Hemporium. Besson gave Mentch $150 to $200 in cash every month for one and one-half ounces of marijuana, the amount Besson usually consumed in a month.
"Laura Eldridge testified she had known Mentch for about three years. In June 2003, she was working as a caretaker for Besson, cooking and cleaning for him, driving him to the grocery store, and driving him to medical appointments and to pick up his medications. Eldridge also drove Besson to Mentch's house to get him his marijuana. The only time Besson saw Mentch was when Eldridge took him to Mentch's house to get marijuana.
"At the time, Eldridge herself had a medical marijuana recommendation for migraine headaches and posttraumatic stress disorder. She was smoking about five or six marijuana cigarettes a day and consuming about one ounce of marijuana a month. Eldridge obtained marijuana exclusively from Mentch for approximately one and one-half years before his arrest. Mentch provided the marijuana through his medical marijuana business, the Hemporium. Eldridge obtained the marijuana from Mentch every month, paying him $200 to $250 in cash for one ounce and $25 in cash for one-eighth of an ounce if she needed more.
"Eldridge was at Mentch's house getting her daughter ready for school on the morning of Mentch's arrest. At the time, she and Mentch were not living together but were seeing each other romantically, and Eldridge had stayed over at Mentch's house the night before the search warrant was served.
"Mentch took the stand in his own defense. In 2002, he obtained a medical marijuana recommendation and began growing marijuana. He learned how to grow marijuana from reading books, searching the Internet, and talking to people. He kept marijuana plants in all three stages of growth so that he was in a constant cycle of marijuana production, which produced a yield of four harvests a year. Mentch's medical marijuana recommendation was still current on the day the police searched his home. At that time, he smoked four to six marijuana cigarettes a day (approximately one-sixteenth of an ounce) and consumed between one and one-half to two ounces of marijuana a month.
"Mentch opened the Hemporium, a caregiving and consultancy business, in March 2003. The purpose of the Hemporium was to give people safe access to medical marijuana. Mentch regularly provided marijuana to five other individuals, including Besson, Eldridge, and a man named Mike Manstock. Sometimes he did not charge them. All five individuals had valid medical marijuana recommendations. Mentch did not provide marijuana to anyone who did not have a medical marijuana recommendation. Occasionally, he took any extra marijuana he had to two different cannabis clubs, The Third Floor and another unnamed place. Although a majority of the marijuana plants in Mentch's home belonged to him, some belonged to Manstock. In addition, Mentch let Besson and Eldridge grow one or two plants.
"Mentch provided marijuana to Besson about once every month and to Eldridge about once or twice every month. On average, they each gave him $150 to $200 for an ounce and a half of marijuana a month. Mentch considered his marijuana 'high-grade' and provided it to Besson and Eldridge for less than street value. He used the money they paid him to pay for 'nutrients, utilities, part of the rent.' Mentch did not profit from his sales of marijuana, and sometimes he did not even recover his costs of growing it. Mentch counseled his patients/customers about the best strains of marijuana to grow for their ailments and the cleanest way to use the marijuana. He took a 'couple of them' to medical appointments on a 'sporadic' basis.
"Although Mentch asked all five patients to come to court and testify on his behalf, only Besson and Eldridge showed up. He did not subpoena the others because one of them was out of state, another did not want to be involved because his father was an attorney, and the third did not want to testify." (Mentch, supra, 45 Cal.4th at pp. 279-281.)
Christopher Conrad, a cannabis expert, testified for the defense. Conrad testified that because of the difficulties in obtaining and growing marijuana, it is not unusual for a medical user of marijuana to keep a significant amount of marijuana in reserve. Medical users who grow their marijuana indoors have to keep a four-month supply on hand to get them through the next harvest. Those who grow their marijuana outdoors have to keep a whole year's supply on hand. Depending on how much a person uses, the amount of marijuana that is kept in reserve ranges from one to four pounds. It is not unusual for people who use marijuana to keep their marijuana in different bags. Users might do this to keep track of the amount of marijuana they have left or to keep track of the different kinds of marijuana they have. Conrad noted that the basement area of appellant's house was not a good place to grow marijuana, and that indications of yellowing on the plants in the basement suggested a potential problem in the growing process. He felt that the plants in the basement were "doomed," that the chance of obtaining usable marijuana from those plants was low. Not counting the plants in the basement, appellant's crop had a potential yield of three to six pounds of usable marijuana per year. If the basement plants had not been in such bad condition, the entire crop would have yielded 12 pounds of usable marijuana per year.
After the court instructed the jury and submitted the case to them, the jury propounded several questions. First, the jury asked whether "the certificates, displayed at Hemp Emporium LLC, allow[ed] Mr. Mentch to sell or distribute marijuana to other card holding patients under the terms of the law?" The court answered, "no, it's not lawful to distribute or sell to other card holders, given the evidence in this case, and I think, if you'll check the instructions, it's consistent with the instructions." Later, the jury asked to see the "Law on Proposition 215." The court told the jury that they had all the law they needed in the jury instructions. Thereafter, the jury propounded two more questions: "Was Robert [sic] Mentch within his right to manufacture hash oil? Was the amount in his possession a reasonable amount under the Compassionate Use Act... ?" The court responded, "It's the instruction that I gave you on the Compassionate Use Act, medical marijuana defense. You know which one it is.... [¶] The question about was this a reasonable amount, those types of things, those are questions for you to answer."
After more deliberations, the jury asked if appellant could "recover his cost from the manufacture of marijuana from patients using the medicine under [Proposition] 215?" The court reiterated that the answer was "the same one I gave before.... Based upon the evidence in this case, he is not authorized by the law to sell or distribute marijuana." The jury's fifth and final question concerned whether the taser related to the gun enhancement allegations. The court informed the jury that the firearm allegations related only to the two rifles. Shortly thereafter, the jury returned its verdicts.
Discussion
I. Failure to Provide a Sua Sponte Instruction Regarding Safe Harbor Quantities of Marijuana under Santa Cruz County Guidelines
In 1996, California voters passed Proposition 215 (§ 11362.5), the Compassionate Use Act. One purpose of the Compassionate Use Act was "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes...." (§ 11362.5 subd. (b)(1)(A).) Nevertheless, "... the Compassionate Use Act is a narrowly drafted statute designed to allow a qualified patient... to possess and cultivate marijuana for the patient's personal use despite the penal laws...." (People v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773 (Urziceanu ).)
Under the Compassionate Use Act, this personal use requirement means that a group of qualified patients cannot collectively cultivate marijuana and distribute the marijuana to other qualified patients; rather, a qualified patient can cultivate medical marijuana only for the personal use of that qualified patient. (Urziceanu, supra, 132 Cal.App.4th at p. 769 ; see e.g., People v. Galambos (2002) 104 Cal.App.4th 1147, 1165-1169; People v. Rigo (1999) 69 Cal.App.4th 409, 412-416; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1389-1400 (Peron); People v. Trippet (1997) 56 Cal.App.4th 1532, 1543-1551 (Trippet ).)
Another purpose of the Compassionate Use Act was "[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." (§ 11362.5, subd. (b)(1)(C).) To that end, in 2003, the California Legislature promulgated the Medical Marijuana Program Act. (Stats.2003, ch. 875, § 1.)
Section 11362.77 enacted as part of the Medical Marijuana Program Act provides that a qualified patient or primary caregiver "may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient." (§ 11362.77, subd. (a).) Pursuant to section 11362.77, subdivision (c), "Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limit set forth in subdivision (a)."
In accordance with section 11362.77, subdivision (c), Santa Cruz County's Medical Marijuana guidelines provide that a qualified patient, or the designated primary caregiver of the patient "may possess amounts of marijuana up to three pounds of dried cannabis bud or conversion per year" and "may cultivate cannabis in an amount not to exceed more than 100 square feet of total garden canopy, as measured by the combined vegetative growth area." (Santa Cruz County Code, tit. 7, ch. 7.124, § 7.124.105, subds. A & B.) Since the Medical Marijuana Program Act specifically permits counties to establish local guidelines for marijuana that exceed permissible state law limits (§ 11362.77, subd. (c)), the Santa Cruz County guidelines are consistent with the legislative mandate. The new affirmative defenses created under the Medical Marijuana Program Act apply retroactively to cases pending at the time of its enactment. (People v. Frazier (2005) 128 Cal.App.4th 807, 826.)
Before trial, Mentch brought a motion in limine to exclude any reference to the amount of marijuana qualified patients and their caregivers are permitted to possess and cultivate under section 11362.77. Mentch reasoned that such "amount was intended by the legislature to be a threshold, not a ceiling, on the amount of marijuana a qualified patient or primary caregiver may possess." He argued that the issue in this case was "whether the quantity of marijuana is reasonably related to the patient's current medical needs, not whether it exceeds the amounts provided in [section 11362.77]."
During a hearing on the motion, Mentch's counsel clarified that while he was seeking to exclude the "safe harbor" quantities of marijuana allowed under section 11362.77, at the same time he was seeking to introduce evidence of the more liberal "safe harbor" quantities of marijuana allowed under Santa Cruz County guidelines. The court ruled that both the state and local guidelines were irrelevant because they were not in effect at the time of Mentch's offenses. However, the court noted that its ruling did not preclude Mentch from presenting his defense because the amount of marijuana allowed to be possessed or cultivated by a patient or a primary caregiver under the CUA was not fixed.
In our original opinion in this case, we concluded that the trial court was incorrect when it concluded that the "safe harbor" guidelines had no application in this case because they were enacted after the date of appellant's crimes. We did not consider whether the safe harbor guidelines were unavailable to Mentch for reasons other than that given by the trial court.
Accordingly, now, we turn our attention to whether or not the trial court erred in failing to give an instruction on the Santa Cruz County "safe harbor" guidelines.
A plain reading of the Santa Cruz County guidelines supports our conclusion that they provide an exemption to a qualified patient and/or a primary caregiver who possesses or cultivates marijuana in limited amounts. Plainly, the guidelines provide a defense to those charged with simple possession and cultivation. However, since Mentch cannot claim the protections under the caregiver defense, it is available to him only as a qualified patient. (Mentch, supra, 45 Cal.4th at pp. 289-290.) Nevertheless, in order to claim the protection, "The name of the qualified medical marijuana patient... shall be and remain posted at any garden site where medical marijuana is being cultivated." (Santa Cruz County Code, tit. 7, ch. 7.124, § 7.124.105, subd. D.)
Assuming for the sake of argument that the documents, which the deputies discovered posted on the wall next to the room that was under surveillance, qualified as posting the name of the qualified patient, the evidence showed that Mentch cultivated far more marijuana than he was entitled to cultivate as a qualified patient. The testimony of Mentch's own expert put the amount of marijuana that could be harvested from the marijuana being cultivated at as much as six pounds. This is twice the limit Mentch could have claimed as a qualified patient. Furthermore, we can infer from the fact that the marijuana plants were being grown in three separate rooms that the area of cultivated cannabis exceeded 100 square feet of total garden area. Accordingly, we conclude that the trial court did not err in failing sua sponte to instruct the jury on the safe harbor quantities of marijuana that Mentch could possess as a patient. That is, because Mentch was cultivating far more marijuana than he was entitled so to do as a qualified patient, he was not entitled to the safe harbor defense.
Initially, Mentch's expert put the quantity at 12 pounds, but after looking at photographs and a video of the plants, he revised his estimate to six pounds.
In fact, in his original reply brief in this case, Mentch claimed his "medical marijuana operation was capable of producing between 3 and 6 pounds per year... well within County limits for five patients."
II. Failing to Provide Sua Sponte Instructions Regarding the Defense of Lawful Marijuana Association.
One of the Medical Marijuana Program's stated purposes was to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats.2003, ch. 875, § 1(b), p. 2.) To achieve this purpose, the Legislature included section 11362.775. "This new law represent[ed] a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients...." (Urziceanu, supra, 132 Cal.App.4th at p. 785.) Effectively, it expanded the personal use requirement concerning the cultivation of marijuana, which the CUA permitted.
Section 11362.775 states that "[q]ualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." Thus, in some circumstances, the statute provides a defense for qualifying patients who are involved in the collective or cooperative cultivation of marijuana for medical purposes. The defense includes protection from criminal liability for the possession of marijuana, for cultivating marijuana, for the possession of marijuana for sale, for the transportation, sale, furnishing, giving away, preparing for sale or administering of marijuana, for maintaining a location for selling, giving away, serving, or using of marijuana, and for managing a location for manufacturing, storing, keeping, and distribution of marijuana for sale.
Mentch contends that the trial court erred in failing to instruct the jury on a collective cultivation defense based on section 11362.775. Mentch argues that the evidence showed that he was a qualified patient and had incorporated the Hemporium in part to work with others to cultivate and maintain a supply of medical marijuana. Through the Hemporium he worked with five others; they all had valid medical marijuana prescriptions. The other members volunteered at the Hemporium to help in cultivating the medical marijuana; and they reimbursed the Hemporium for the costs of production through the purchase price of the medical marijuana.
As an initial matter, Urziceanu, supra, 132 Cal.App.4th 747, cited by Mentch for the proposition that there was sufficient evidence to require an instruction on the defense, involved substantially more evidence of collective marijuana cultivation than was offered here. In Urziceanu, the alleged collective operated openly with formal, documented practices and procedures for signing up and verifying the eligibility of cooperative members. (Id. at pp. 763-766, 786.) Dozens of members provided volunteer services or donated supplies. (Id. at pp. 759, 763-766, 786.) The existence of the collective and the manner in which it conducted its activities was substantiated by the testimony of multiple members. (Id. at pp. 765- 766.) Although we have found no published or unpublished case that has required such a detailed showing to support a collective cultivation defense, we believe that Mentch's showing was inadequate. While Mentch testified that some of the plants in his house belonged to Manstock and that he sometimes allowed Eldridge and Besson to grow one or two plants, he admitted that the majority of the plants belonged to him. Mentch offered no evidence that Eldridge and Besson were keeping plants in the house at the time the deputies searched. Nor was there any evidence that Manstock, Eldridge and Besson or anyone else tended the plants themselves. Both Eldridge and Besson confirmed that they came to Mentch to buy marijuana and no evidence was presented that they helped in any way in running the Hemporium. Unlike the evidence that the defendant in Urziceanu offered, here, the evidence that Mentch offered did not establish that any other members in the Hemporium volunteered or participated in any way, by helping with cultivation, delivery, processing of new applications or anything else to further the aims of the Hemporium as a supposed collective cultivation operation.
Furthermore, for another reason, we do not believe that the collective cultivation or lawful association defense was available to Mentch under the evidence presented. As stated succinctly in People v. Mentch, supra, 45 Cal.4th at page 290, trial courts are still responsible for acting as gatekeepers and determining whether the evidence presented, considered in the light most favorable to the defendant, could establish an affirmative defense.
With exceptions not relevant here, the Medical Marijuana Program Act limits the amount of marijuana plants that a qualified patient can possess: "[A] qualified patient... may... maintain no more than six mature or 12 immature marijuana plants...." (§ 11362.77, subd. (a).) In this case, as a qualified patient/alleged member of a cultivation-collective, Mentch would have been entitled to possess, at most, six mature or 12 immature plants for himself. Assuming that the other five members of the alleged cooperative were qualified patients, the cooperative could have possessed a total of 36 mature plants or 72 immature plants. Instead, there were 82 marijuana plants in the flowering or budding stage, 57 "clone" marijuana plants, 48 marijuana plants in the growing or vegetative stage, and three "mother" plants. (Mentch, supra, 45 Cal.4th at pp. 278-281.) Mentch admitted that the "majority" of the plants belonged to him. While persons who associate to cultivate marijuana collectively in accordance with section 11362.775 are not "solely on the basis of that fact" subject to state criminal sanctions, no such limited immunity may be invoked by a person who possesses far more marijuana plants than allowed by section 11362.77.
Although the MMPA elaborates on the definition of primary caregiver in the CUA, it retains the definition of a primary caregiver contained in the CUA: "[T]he individual, designated by a qualified patient... who has consistently assumed responsibility for the housing, health, or safety of that patient or person...." (§ 11362.7, subd. (d).) Since the Supreme Court held that Mentch does not qualify as a primary caregiver under the CUA, he cannot claim the protection of section 11362.77 as a primary caregiver. (Mentch, supra, 45 Cal.4th at pp. 289-290.)
Six mature plants per patient for a total of 36 mature plants or 12 immature plants for a total of 72 immature plants. Although section 11362.77 would allow higher amounts if the members of the collective had doctors' recommendations that the specified quantities did not meet their needs (§ 11362.77, subd. (b)), here, there was no evidence of such recommendations of specific higher amounts needed by the alleged members of the alleged collective.
Moreover, the MMPA specifies that collectives, cooperatives or other groups shall not profit from the sale of marijuana. (§ 11362.765, subd. (a) ["nothing in this section shall authorize... any... group to cultivate or distribute marijuana for profit"].) The evidence showed that money taken in by the Hemporium went not only towards the cost of growing the marijuana, but also to pay Mentch's other bills.
Accordingly, Mentch was not entitled to an instruction regarding lawful marijuana association/collective cultivation under the evidence presented in this case.
III. Failure to Instruct Sua Sponte on a Mistake of Law Defense
Mentch asserts that the trial court erred in failing to instruct the jury with a mistake of law instruction.
Mentch claims that his mistaken belief that he was complying with the CUA was an excusable mistake of law and negates the specific intent element of possession for sale. He argues that a mistake of law instruction would have been entirely consistent with the principal theory of his defense that he was an eligible primary caregiver under the CUA.
Again, Mentch relies on Urziceanu, supra, 132 Cal.App.4th 747, for his assertion that a mistake of law is a defense when it negates the existence of a defendant's specific intent. In Urziceanu, the defendant presented evidence in support of his mistake of law defense. The defendant was charged with various crimes concerning the cultivation and sale of marijuana, with the jury finding him guilty only of the crime of conspiracy to sell marijuana. One of defendant's primary arguments had been that the Medical Marijuana Program Act and the CUA supplied him with a defense and the trial court should have instructed the jury on his defenses of mistake of law and the vagueness of the CUA. The reviewing court concluded that evidence existed to support defendant's good faith mistake of law, which although not a defense to the crime of selling marijuana, was a defense to the conspiracy to commit that crime. The court noted that the defendant had presented evidence that he contacted law enforcement officers and other public officials and attempted to cooperate with them to ensure that his organization met the requirements of the CUA. (Urziceanu, supra, 132 Cal.App.4th at pp. 766, 774-779.)
The CUA provides an affirmative defense, which a defendant has the burden of raising. (Trippet, supra, 56 Cal.App.4th 1532, 1551, fn. 17.) A defendant's mistaken understanding of the facts legally required to sustain that defense does not negate any element of the offense of possession for sale, including the specific intent element. (Peron, supra, 59 Cal.App.4th 1383, 1400.) Accordingly, such a mistake does not provide a defense to that charge. (See Urziceanu, supra, 132 Cal.App.4th at p. 776 [defendant's good faith belief that his marijuana operation met the terms of the CUA is not a defense to the charge of selling marijuana].)
The elements of possession for sale of marijuana as set forth in CALCRIM No. 2302 are: "1 The defendant [unlawfully] possessed a controlled substance; [¶] 2 The defendant knew of its presence; [¶] 3 The defendant knew of the substance's nature or character as a controlled substance; [¶] 4 When the defendant possessed the controlled substance, (he/she) intended to sell it; [¶] 5 The controlled substance was [marijuana]; [¶] AND [¶] 6 The controlled substance was in a usable amount."
Unlike possession for sale of marijuana, which requires possession with the specific intent to sell (CALCRIM No. 2302), conspiracy requires proof of a specific intent to commit an unlawful act. (Urziceanu, supra,132 Cal.App.4th at pp. 778-779.)
Furthermore, the large amount of income that Mentch was making from his sales of marijuana critically undermines any claim that he believed in good faith he was complying with the law.
IV. Admission of Evidence that a Baretta Pistol was Found Locked in Mentch's Safe
Mentch contends that the trial court improperly admitted evidence during trial of the Baretta pistol found in his safe.
At the conclusion of the preliminary hearing, the court struck a firearm allegation pertaining to the Baretta pistol found in Mentch's safe. Before trial, Mentch sought to exclude any evidence during trial of the presence of the Baretta pistol in his residence. While the prosecutor acknowledged that the Baretta pistol was not being charged as a special allegation, he argued that it was still relevant to the possession for sale charge, and therefore admissible. The trial court agreed. The court noted that just because the gun was not being charged as a special allegation, it did not make the gun irrelevant to the question of whether the marijuana was being possessed for sale. Accordingly, the prosecution was allowed to elicit testimony about the Baretta pistol.
Relying on People v. Archer (2000) 82 Cal.App.4th 1380 (Archer), Mentch argues that the Baretta pistol had no alleged or plausible connection with any unlawful act. The pistol was secured with a trigger lock and was kept in a pouch in a locked safe that was in a closet in his bedroom. Accordingly, Mentch argues the only possible reason to admit the evidence was to prove that he was the " 'type' who owned 'deadly weapons' with unusual (and perhaps alarming) names like Baretta and that, as a medical marijuana provider and gun owner [he] must, by dint of mere coincidence between the two, have been 'ready for it.' "
In Archer, supra, 82 Cal.App.4th 1380, the defendant was convicted of murder with the personal use of a knife. More than a year after the murder, on two separate occasions, the defendant's home was searched. (Id. at pp. 1383-1385) "Police recovered two knives from appellant's backyard, three knives from his bedroom, two knives from his workshop and two knives from his storage locker." (Id. at p. 1392.) One knife had a presumptive positive reaction for blood and the defendant's codefendant said one of the knives resembled the knife he used to stab the victim. (Ibid.)
The defendant objected to the admission of the knives at trial, claiming they were not relevant. The People claimed the knives were relevant to the availability of weapons and to the planning of the murder. The court admitted the knives at trial and defendant argued on appeal that the trial court erred in so doing. (Archer, supra, 82 Cal.App.4th at p. 1392.) The appellate court agreed, noting the following.
"The only knives which had any relevance to the crime charged were the knife [the codefendant] identified as resembling the one he used to stab [the victim], and the knife which had a positive reaction to the test for blood. The knife [the codefendant] identified was not shown to be unique or difficult to acquire, nor was there such a showing as to the knife that was presumptively positive for blood. Hence there was no issue as to appellant's access to such weapons or his need to stockpile knives in order to commit the murder. 'Evidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons--a fact of no relevant consequence to determination of the guilt or innocence of the defendant.' [Citation.] Admission of the knives other than the two which had some arguable relevance to the case created a risk of that same inference in this case." (Archer, supra, at pp. 1392-1393.)
Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) In reviewing a trial court's relevance ruling we apply the abuse of discretion standard. (People v. Panah (2005) 35 Cal.4th 395, 474.)
The Archer decision relied upon by Mentch to support his argument that the unrelated Baretta evidence was, essentially, akin to improper propensity evidence and should not have been admitted, involved circumstances where the weapons unassociated with the crime had no relevance to the issues at trial. (See Archer, supra,82 Cal.App.4th 1380, 1392-1393.)
In contrast here, the unrelated weapons evidence was relevant to the disputed issue of whether Mentch possessed the marijuana for sale. As Yanez explained, sellers often keep guns around to protect their marijuana from being stolen by others. The presence of the pistol in Mentch's house was one of the factors Yanez relied upon to conclude that Mentch possessed the marijuana for sale. Given this important distinction, we do not find the Archer decision cited by Mentch to be controlling. The trial court did not abuse its discretion in admitting the Baretta evidence.
V. Exclusion of Evidence that Mentch Claims Was Relevant to His Defense
Mentch contends that the trial court wrongly excluded three categories of "significant exculpatory evidence" at trial based on its erroneous conclusion that the Medical Marijuana Program Act did not apply retroactively.
First, Mentch contends that the trial court erred in excluding evidence of Santa Cruz County's safe harbor guidelines. Mentch sought to introduce the evidence of the guidelines during the testimony of Yanez and a defense expert. As noted ante, in section I, the trial court was not incorrect in excluding this evidence.
Second, Mentch contends that the trial court erred in ruling that his "belief" as to the validity of his customers' medical marijuana recommendations was irrelevant. We disagree. "Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) However, the trial court lacks discretion to admit irrelevant evidence. (People v. Riggs (2008) 44 Cal.4th 248, 289.)
Mentch argues that because under Urziceanu, mistake of law provides a defense to a specific intent crime such as possession for sale, nothing could be more relevant to defending a specific intent crime than that he knew, because he believed in good faith that his conduct was legal; ergo, nothing could be more relevant to his defense than that he believed he and his medical marijuana associates held valid medical marijuana cards. We pointed out in section III, ante, Mentch was not entitled a mistake of law defense. Simply put, Mentch's belief as to whether his customer's marijuana recommendations were actually valid was irrelevant because his belief did not have any tendency in reason to disprove his specific intent to sell the marijuana.
Lastly, Mentch contends that the trial court erred in excluding evidence of "Hemporium's description and purpose" as irrelevant, which would have been relevant to his mistake of law defense. However, contrary to Mentch's assertion, he was able to testify that he opened Hemporium, which he described as a caregiving and consultancy business, in March 2003, the same year he registered it with the state. Moreover, as noted in section III, ante, Mentch was not entitled to a mistake of law defense.
VI. Failure to Modify CALJIC No. 17.15
The information in this case alleged arming enhancements pursuant to Penal Code section 12022, subdivision (a)(1) as to counts one through four. During a discussion on jury instructions, the trial court indicated its intention to instruct the jury on the arming enhancement with CALJIC No. 17.15. Counsel for Mentch raised no objection to the standard jury instruction, nor did he request that the instruction be modified in any way.
The Attorney General argues that because defendant did not seek a clarification or an amplification of the arming enhancement instruction from the trial court, he forfeited any claim of error. This contention is founded, however, on the principle that a challenge to an instruction correct in the law is too general or is incomplete is forfeited if the party does not propose clarifying or amplifying language to the trial court. (People v. Hart (1999) 20 Cal.4th 546, 622.) Here, Mentch contends that the arming enhancement instruction was not a correct statement of the law because it omitted the facilitative nexus subcomponent required under Bland, supra, 10 Cal.4th 991. Assuming that the instruction was incorrect, such a claim was not forfeited under the principle that the trial court is obligated, regardless of a request, to instruct on general legal principles applicable to the case. The court must instruct "upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047; see also Pen. Code, § 1259 ["The appellate court may also review any instruction given... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"].)
Accordingly, the court apprised the jury, consistent with CALJIC No. 17.15, "[i]t is alleged in Counts 1 through 4 that in the commission of the felony or attempted felony therein described, a principal was armed with a firearm. [¶] If you find the defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. [¶] A principal in the commission of a felony or attempted felony is one who either directly or actively commits or attempts to commit the crime, or one who aids and abets the commission or attempted commission of a crime. [¶] The term 'armed with a firearm' means knowingly to carry a firearm or have it available for offensive of defensive use. [¶] The word 'firearm' includes a pistol, revolver, shotgun, or rifle or any other device designed to be used as a weapon from which is expelled through a barrel a projectile by force of any explosion or other form of combustion. [¶] The People have the burden of proving the truth of the allegation. If you find a reasonable doubt that it is true, you must find it to not be true. Include a special finding on that question using the form that will be supplied to you for that purpose. [¶] The fact that the firearm was inoperable is immaterial."
During deliberations, the jury asked whether the Taser gun that was found on the television related to either of the gun enhancements. The court told the jury that the arming "allegations relate only to the two rifles."
Thus, on the verdict forms, as to counts one and two, the jury found true the special allegation that Mentch was armed with a firearm, "to wit, RIFLES...."
Mentch asserts that the trial court had a sua sponte duty to modify its instruction on the arming enhancement to require an additional finding of a "facilitative nexus" between the rifles and marijuana found in his home.
Beginning with People v. Bland (1995) 10 Cal.4th 991 (Bland), the California Supreme Court has held there must be evidence of a "nexus or link" between the underlying offense and the particular firearm charge to establish the statutory requirement of, in the particular circumstances in Bland, "being 'armed with a firearm in the commission' of felony drug possession...." (Id. at p. 1002.)
In Bland, the defendant was convicted of two counts of possession of cocaine base for sale, and the jury found true the special allegation that he was armed with an assault weapon in the commission of one of the underlying drug offenses within the meaning of Penal Code section 12022, subdivision (a)(2). While the defendant was outside, officers conducted a search of the residence, locating rock cocaine in defendant's bedroom closet and "a cache of unloaded firearms, including an assault weapon" in the same bedroom under a bed. (Bland, supra, 10 Cal.4th at p. 995.) The main issue was whether the defendant had to be in close proximity to the weapon at the time the police discovered it.
The Supreme Court reversed the Court of Appeal, which had struck the arming enhancement. The Supreme Court concluded that because the underlying crime of felony drug possession is a continuing offense (Bland, supra, 10 Cal.4th at p. 999), "it is immaterial whether [the] defendant was present when police seized the assault rifle together with the cache of crack cocaine, so long as he had the firearm available for use in furtherance of the drug offense at any time during his possession of the drugs." (Id. at p. 1000.)
The Supreme Court observed that Penal Code section 12022, subdivision (a), required that the defendant (1) be armed (2) in the commission of the underlying offense. The Supreme Court explained that the second element of the firearm enhancement of Penal Code section 12022, subdivision (a) has both a temporal and a crime nexus requirement: "[B]y specifying that the added penalty applies only if the defendant is armed with a firearm 'in the commission' of the felony offense, section 12022 implicitly requires both that the 'arming' take place during the underlying crime and that it have some 'facilitative nexus' to that offense." (Bland, supra, 10 Cal.4th at p. 1002.)
The Bland court referred to federal court decisions interpreting the federal counterpart to California's arming enhancement law: "Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being 'armed with a firearm in the commission' of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to California's weapons enhancement law [citation], have described this link as a 'facilitative nexus' between the drugs and the gun. [Citation.] Under federal law, which imposes specified prison terms for using or carrying a firearm ' "during and in relation to" ' a crime of drug trafficking, 'the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.' [Citation.] So too in California." (Bland, supra, 10 Cal.4th at p. 1002.)
The Bland court concluded that because the assault weapon was found in close proximity to the cocaine in a place frequented by the defendant, the jury could reasonably infer "(1) that the defendant knew of the firearm's presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that at some point during the period of illegal drug possession, the defendant was present with both the drugs and the firearm and thus that the firearm was available for... use to aid in the drug possession." (Bland, supra, at p. 1003.)
Subsequently, our Supreme Court has reiterated Bland 's holding that the "arming" under Penal Code section 12022 must have occurred both during the commission of the underlying crime and have a facilitative nexus to the crime. (In re Tameka C. (2000) 22 Cal.4th 190, 197 [where defendant used firearm to perpetrate assault, firearm clearly "furthered" or "facilitated" commission of the assault].) In fact, even before Bland, our Supreme Court had held that a defendant who shoots one victim, thereby facilitating his escape from the robbery of another victim, had used the firearm "in the commission of" the robbery. (People v. Fierro (1991) 1 Cal.4th 173, 225-227.) More recently, in People v. Pitto (2008) 43 Cal.4th 228 (Pitto), the Court refused to overrule Bland, agreeing with the defendant's contention that "Bland appears to have adopted a 'facilitative nexus' test and embraced a 'purpose and effect' standard." (Id. at p. 239.)
In Pitto, our Supreme Court determined that the proximity of the handgun and the methamphetamine was not "accidental or coincidental," in that defendant had consciously put the gun and drugs in the particular positions in which they were found. This "deliberate placement of the gun and drugs in juxtaposition to each other negates any claim of accident or coincidence under Bland, supra, 10 Cal.4th 991...." (Pitto, supra, 43 Cal.4th at p. 240.)
The defendant in Pitto was arrested after a search of his van disclosed methamphetamine in a duffel bag behind the driver's seat, and one foot from the bag, an unloaded revolver along with ammunition. (Pitto, supra, 43 Cal.4th at pp. 232-233.) He took the stand at trial and admitted that he had purchased and possessed the methamphetamine and the weapon, but denied that the gun possession was related to the drug possession, claiming that he bought it because he was depressed and contemplating suicide. (Id. at pp. 233-234.) The Court of Appeal held that the trial court erred under the United States Constitution by failing to advise the jury of Penal Code section 12022(c)'s requirement of a nexus between the arming and the underlying offense, and that the error was not harmless beyond a reasonable doubt. (Id. at p. 235.)
Our Supreme Court disagreed, concluding, "this was a classic case for finding that the defendant was armed while possessing and transporting a controlled substance." (Pitto, supra, 43 Cal.4th at p. 238.) The Pitto court emphasized that the defendant admitted that he knew about the presence of the handgun and its proximity to the drugs and that therefore "this proximity [was not] 'accidental or coincidental,' for... defendant had consciously put the drugs and the gun in those positions." (Id. at p. 240.)
Accordingly, because "Bland made clear that it did not impose an 'intent requirement' under [Penal Code] section 12022, or provide that the purpose with which the gun was placed near the drugs negates the 'facilitative nexus' that arming requires"(id. at pp. 239-240), the court held that the elements of Penal Code section 12022 had been satisfied, notwithstanding that the defendant's claimed motive for placing the weapon near the drugs was unrelated to his possession of the contraband. (Pitto, supra, at p. 240.)
The court in Pitto did not reject its prior explanation in Bland that the "in the commission of" element of an arming enhancement has both temporal and relational components. Furthermore, Pitto did not address the issue of whether, in a particular case, a trial judge may have a sua sponte duty to instruct the jury that a facilitative nexus between the defendant's arming and the underlying offense is required for a finding that the prosecution has met its burden of proving an enhancement under Penal Code section 12022. (See People v. Montoya, supra, 7 Cal.4th at p. 1047, [court required, even absent request, to instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case].) Moreover, the Bland court hinted that there may be some instances where there is defense evidence that could rebut the reasonable inference that can be drawn by the jury from the proximity of a firearm to illegal drugs. (See, Bland, supra, 10 Cal.4th at p. 1003, [reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was armed with a firearm in the commission of a felony within the meaning of section 12022].) However, as we explain, we do not find this to be such a case.
As here, in Bland, the only instruction read to the jury regarding the Penal Code section 12022 enhancements was CALJIC No. 17.15. (Bland, supra, 10 Cal.4th at pp. 1005-1006.) Correspondingly, the jury in Pitto was instructed in the language of CALJIC No. 17.15. (Pitto, supra, 43 Cal.4th at p. 234.) In neither case did the Supreme Court strike the arming enhancements because the language of CALJIC No. 17.15 was inadequate. Rather, in each case the Supreme Court found that the evidence was sufficient to find that the weapons were in proximity to the drugs and therefore their presence was not accidental or coincidental. (Pitto, supra, at p. 240, Bland, supra, at pp. 1003,1006.) Similarly, in this case, Mentch admitted that a former girlfriend gave the rifles to him and that he kept them in the house for protection. Both guns were kept on the first floor of the house in close proximity to growing and packaged marijuana; one was found in a closet in the living room, the other in the clone room. "A firearm kept together with illegal drugs creates an ongoing risk that serious injury or death will occur if the defendant uses the firearm for protection, to guard against theft of the drugs, or to ward off police. Consistent with legislative intent, we conclude that in cases of felony drug possession, evidence that a firearm was kept together with drugs in a place frequented by the defendant is sufficient to support a finding that the defendant was 'armed with a firearm in the commission' of the felony drug offense. [Citation.]" (Bland, supra, 10 Cal.4th at p. 1006.) The fact that the rifles were inoperable is immaterial. (Id. at p. 1005.)
In fact, the trial court in Bland had modified CALJIC NO. 17.15 by omitting the word "knowingly" when defining the term "armed with a firearm. (Bland, supra, 10 Cal.4th at p. 1005.)
Accordingly, because the rifles were not in proximity to the marijuana by accident or coincidence, but rather Mentch testified he kept them for protection, we conclude that the trial court was not required to modify CALJIC No. 17.15.
VII. Cumulative Error
Finally, Mentch contends that even if the errors below failed to rise to the level of prejudice individually, this court should consider the cumulative prejudice of all the errors combined in determining whether to reverse his convictions.
In a close case, the cumulative effect of multiple errors may be sufficient to cause the trial to have been unfair and hence cause a miscarriage of justice. (People v. Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds by People v. Morante (1999) 20 Cal.4th 403.) Multiple errors may require reversal even when the errors, considered individually, would not warrant the same conclusion. (People v. Jackson (1991) 235 Cal.App.3d 1670, 1681.) If, in the absence of the cumulative errors, it is reasonably probable that the jury would have reached a result more favorable to a defendant, the decision must be reversed. (People v. Holt (1984) 37 Cal.3d 436, 459.) Having found no error in this case, we reject Mentch's cumulative prejudice argument.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.