Opinion
F053258
4-25-2008
THE PEOPLE, Plaintiff and Appellant, v. ANTONIO PARRA, Defendant and Respondent
Phillip J. Cline, District Attorney, Don H. Gallian and William E. Yoshimoto, Assistant District Attorneys, and Barbara J. Greaver and John F. Sliney, Deputy District Attorneys for Plaintiff and Appellant. William Logan for Defendant and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
The People of the State of California appeal from the order granting respondent Antonio Parras motion to dismiss an information that was filed against him. This three-count information charged respondent with unlawfully cultivating marijuana, possessing marijuana for the purposes of sales and maintaining a place for the selling or using of controlled substances; it also alleged that a principal was armed with a firearm in connection with the first two counts. The superior court concluded that prosecution of the case was barred by the Compassionate Use Act of 1996 (CUA) because "this defendant clearly appears to have complied with the requirements of Health and Safety Code Section 11362.77(b) [sic]." We conclude as a matter of law that the dismissal motion should have been denied. Accordingly, we will reverse.
The CUA is a successful initiative measure that is codified at Health and Safety Code section 11362.5. The CUAs purpose is "`[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. [Citation.]" (People v. Frazier (2005) 128 Cal.App.4th 807, 816.)
FACTS PRESENTED AT THE PRELIMINARY HEARING
On November 25, 2006, "a friend of [respondents] came into [respondents] backyard and was shot and died." It was discovered during the resulting investigation that marijuana was being cultivated and processed at respondents residence.
Twelve marijuana plants and two sheds were discovered in the backyard. Numerous racks, boxes, plastic baggies and paper sacks containing marijuana leaves, shake and processed buds were found in one of the sheds. The other shed contained indoor marijuana growing systems, a copper tubing system that contained marijuana residue, a Glock nine-millimeter handgun and two . 22-caliber rifles.
Respondents residence was searched. Inside a closet in respondents bedroom small plastic baggies containing marijuana, $389 in cash (thirty-one $5 bills, sixteen $10 bills, fourteen $1 bills, and a few $20 bills), small jars or vials containing kef or hashish and a .32-caliber handgun were found. In the bathroom, a bag of marijuana and more glass vials of kef or hashish were found. Another bedroom contained a freezer, a scale and a duffle bag. Several jars containing seven pounds of marijuana bud were found in the freezer. Jars of marijuana and vials of kef or hashish were found in the duffle bag. Also, deputies found a device used to compress kef or hashish into small cakes that would be embossed with a marijuana leaf and the words "Parra Farms." Numerous photographs were seized. In some of them, respondent posed with firearms among marijuana plants. In others, respondent held marijuana and money, sometimes with his face covered. Some of the photographs depicted marijuana being grown indoors. Books about marijuana cultivation and a members card to the Oakland Cannabis Buyers Club were found. When respondent was arrested and searched, five $100 bills were found in a pocket.
This substance is variously spelled "kief" and "kef" in the appellate record. The two spellings are variants of the same word, which also can be spelled "keef." (Websters New World Dict. (2d college ed. 1982) pp.770, 771, 775.) We have elected to use the "kef" spelling of this word.
In total, 23 1/2 pounds of marijuana shake, leaf and buds were seized, consisting of 16 1/2 pounds of shake and seven pounds of buds. The growing marijuana plants weighed 5.7 pounds, excluding the root balls. The kef was not weighed.
Respondent was interviewed prior to his arrest. He said that all of the marijuana belonged to him. Respondent said that he used the marijuana for medical purposes. Respondent said he made marijuana cigarettes, marijuana butter and kef. Tulare County Sheriffs Detective Kent Haws asked respondent if he provided marijuana to anyone. Respondent "said he did not; however, he had some friends that were also medical marijuana users with recommendations who he shared his marijuana with, and they shared their marijuana with him." Respondent could not provide Haws with the names of these friends or contact information. Respondent said that he used about half an ounce of marijuana a day. When asked why he had such a large amount of marijuana, respondent said that "[h]e used to smoke about an ounce a day just for fun" before he had a medical marijuana recommendation. Respondent said the photographs "were poses just for fun." Haws asked respondent "if he was familiar with the guidelines regarding medical marijuana," and respondent "said he did not know what the guidelines were."
Tulare County Sheriffs Detective Barry Molyneux testified as an expert in marijuana sales and cultivation. Counsel stipulated that Molyneux was not an expert in medical marijuana. In response to a hypothetical question based on the facts similar to this case, Molyneux opined that it is "[c]lear-cut to me this is [a] possession [of] marijuana for sales case." In Molyneuxs prior experiences with medical marijuana users, they did not package their marijuana in small sandwich bags and did not take "glory photos" like those seized from respondents residence. Based on respondents estimation of using half an ounce of marijuana per day, he would use roughly a pound of marijuana per month. Molyneux did not know "how many individual plants [the marijuana inside respondents residence] had come from."
Respondent testified that he grew marijuana and he possessed the marijuana found at his residence for personal use. He uses half an ounce of marijuana per day to treat glaucoma. Respondent testified that he "cooperatively and collectively" grows and processes marijuana with Jo Ann Nichols. Respondent grew marijuana for use by Jo Ann, Randy, Patty and Tad Nichols. Respondent believes that Jo Ann is a medically approved user. Jo Ann, Randy and Tad showed respondent proof of their medical marijuana recommendations when respondent met them about a year and a half ago but he did not keep a copy of the recommendations. Respondent gave Jo Ann and Randy about two ounces of marijuana per week during the period of September 2006 until his arrest. They gave him $400 to $500 cash to compensate him for expenses; they did not give him any type of personal property. Respondent gave Tad around two ounces of marijuana once per month during this same time period. Tad gave him "[p]robably like another $ 500. He just helped me with fertilizers." Respondent admitted that he did not tell Haws that there was "some sort of co-op going on."
Solely to enhance readability, members of the Nichols family will be referenced by their first names.
Jo Ann testified that she uses marijuana to ease arthritis pain. She and Randy were issued medical marijuana recommendations and they gave respondent a copy of them. Respondent provides them with marijuana. Jo Ann spoke briefly with respondent "about him being [her] primary caregiver in regards to providing [her] with marijuana" but she does not "know if we have ever come to an agreement on that." She helped respondent cultivate the marijuana. She gave respondent supplies such as copper pipe. "[H]ypothetically," she "chip[ped] in" money to pay for fertilizer. Jo Ann denied paying respondent for marijuana.
A written doctors medical recommendation authored by Dr. Jeffry King for respondent to have "99 [marijuana] plants" was admitted into evidence.
DISCUSSION
Appellant contends the superior court erred in granting the dismissal motion because there is evidence establishing probable cause that respondent was guilty of the charged crimes in view of his status as a qualified patient. In concluding otherwise, appellant asserts that the superior court erroneously reweighed the evidence and gave credence to witnesses the magistrate did not.
Respondent argues that People v. Mower (2002) 28 Cal.4th 457 (Mower) interpreted the CUA as conferring "a limited immunity against prosecution" such that if a defendant shows that he or she was a qualified patient at the time of the arrest "[t]he burden then shifts (back) to the prosecution to establish that the possession and cultivation were NOT for medical use." In respondents view, unless the People unequivocally prove at the preliminary hearing beyond a reasonable doubt that the marijuana at issue was not possessed/cultivated for medical use, the charges must be dismissed. Respondent reasons that because he produced evidence showing that he had a physicians recommendation to cultivate 99 marijuana plants and the amount of marijuana seized was less than that which could be obtained from 99 plants, the superior court correctly granted the dismissal motion.
As we will explain, appellant is correct. The People do not bear a heightened burden of proof at the preliminary hearing when the defendant raises the CUA as a defense to the charged offenses. The relevant determination is whether there is probable cause to believe that respondent is guilty in light of his status as a qualified patient. (Mower, supra, 28 Cal.4th at p. 473.) Furthermore, we agree with appellant that in ruling on the dismissal motion the superior court erroneously reweighed the evidence and improperly disregarded the determination by the magistrate that there was disputed evidence on the question whether respondents possession/cultivation of the marijuana was for medical purposes. Having independently assessed the evidence, we conclude as a matter of law that there is ample proof establishing the requisite probable cause that respondent is guilty of the charged offenses in light of his status as a qualified patient. Therefore, the order granting the dismissal order must be reversed.
I. The prosecution does not bear a heightened burden of proof at the preliminary hearing when the CUA is raised as a defense.
In relevant part, Health and Safety Code section 11362.5, subdivision (b)(1)(B), provides that one of the purposes of the CUA is "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." In Mower, supra, 28 Cal.4th 457, our Supreme Court held that this prohibition against prosecution "cannot be given its proper effect unless it too is recognized as a proper basis for setting aside an indictment or information." (Id. at p. 472.) The court explained:
"Because the grant of limited immunity from prosecution in section 11362.5(d) operates by decriminalizing conduct that otherwise would be criminal, a defendant moving to set aside an indictment or information prior to trial based on his or her status as a qualified patient or primary caregiver may proceed under Penal Code section 995. To prevail, a defendant must show that, in light of the evidence presented to the grand jury or the magistrate, he or she was indicted or committed `without reasonable or probable cause to believe that he or she was guilty of possession or cultivation of marijuana in view of his or her status as a qualified patient or primary caregiver. [Citation.] [Fn. omitted.] `"`Reasonable or probable cause means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. `Reasonable and probable cause may exist although there may be some room for doubt." [Citations.] Of course, in the absence of reasonable or probable cause to believe that a defendant is guilty of possession or cultivation of marijuana, in view of his or her status as a qualified patient or primary caregiver, the grand jury or the magistrate should not indict or commit the defendant in the first place, but instead should bring the prosecution to an end at that point." (Mower, supra, 28 Cal.4th at p. 473, emphasis added.)
Thus, Mower establishes that the CUAs limited immunity from prosecution permits a defendant to file a motion pursuant to Penal Code section 995 to set aside the information prior to trial. Mower did not elevate the prosecutors burden of proof at the preliminary hearing. When there is evidence presented at a preliminary hearing that would exculpate the defendant based on the CUA, the magistrate or grand jury is to determine whether there is probable cause to believe the defendant is guilty in light of his status as a qualified user or caregiver. There is no shifting or elevation of the burden of proof. (Mower, supra, 28 Cal.4th at p. 473.)
II. The CUA does not provide a shield from prosecution for the cultivation or possession of marijuana for the purpose of sale.
Respondents possession of a recommendation for 99 marijuana plants does not authorize him to simultaneously possess marijuana for medical and nonmedical purposes and it did not authorize him to sell marijuana to others. If a defendant possesses or cultivates marijuana for multiple purposes, one purpose being protected by the CUA and another purpose not being protected by the CUA, the defendant is still subject to prosecution for the unprotected conduct.
Health and Safety Code section 11362.5, subdivision (b)(2), provides: "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes."
In People v. Trippet (1997) 56 Cal.App.4th 1532 (Trippet), the court explained that the CUA is not "a sort of `open sesame regarding the possession, transportation and sale of marijuana in this state." (Id. at p. 1546.) In relevant part, the defendant in Trippet claimed to use marijuana at times for a medical purpose, at other times for a spiritual purpose and at other times for both purposes. The court rejected defendants religious freedom defense and determined that if defendant possessed and transported more than 28.5 grams of marijuana solely for a spiritual purpose, "she rather clearly has no defense to the charges against her." (Id. at p. 1547.)
Furthermore, People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1393-1395 and People v. Rigo (1999) 69 Cal.App.4th 409, 415, both rejected the argument that the CUP provided a defense to a charge of selling or giving away marijuana. "[D]espite the enactment of the [CUA], `[t]he acts of selling, giving away, transporting, and growing large quantities of marijuana remain criminal. [Citation.]" (People v. Young (2001) 92 Cal.App.4th 229, 237.)
Thus, respondents possession of a medical recommendation for 99 marijuana plants and his use of marijuana to treat glaucoma does not immunize him from prosecution for simultaneously cultivating and possessing marijuana for the purpose of sale, even if the total amount of marijuana seized is less than that which could be obtained from 99 plants.
III. The dismissal motion should have been denied because evidence was presented at the preliminary hearing establishing probable cause to believe that respondent is guilty of the charged offenses in view of his status as a qualified patient.
A. Facts.
At the conclusion of the preliminary hearing, defense counsel asserted that appellant should not be bound for trial because "we have raised a reasonable doubt [concerning applicability of the CUA]." The magistrate correctly rejected this argument, determining that Mower "says you can do a [Penal Code section] 995 [motion], but it doesnt say a 995 [motion] has to be proof beyond a reasonable doubt." The magistrate then pointed out several disputed factual issues concerning application of the CUA to this case: (1) appellant did not possess 99 plants as is contained in the doctors recommendation but had marijuana plants and other marijuana products; (2) appellant testified that he had more than enough marijuana for himself and there was allegedly a co-operative in place; (3) appellants testimony concerning receipt of cash payments for the marijuana conflicted with Jo Anns testimony that she did not pay him cash for the marijuana; and (4) appellant did not tell the police officers that he was growing marijuana for other people. Then, the magistrate determined there was sufficient evidence for appellant to be held for trial.
In the written ruling granting respondents Penal Code section 995 motion (the dismissal motion) the superior court determined that the information must be dismissed because respondent complied with the requirements of the CUA. The ruling did not mention the magistrates conclusions at the preliminary hearing.
B. Standard of review.
The standard of review applied to a pretrial dismissal motion is settled:
"In determining if charges in an information can withstand a motion under section 995, neither the superior court nor the appellate court may reweigh the evidence or determine the credibility of the witnesses. [Citations.] Ordinarily, if there is some evidence in support of the information, the reviewing court will not inquire into its sufficiency. [Citations.] Thus, an indictment or information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged. [Citations.]" (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)
Furthermore:
"`[A]lthough there must be some showing as to the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate. [Citation.] `Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citations.] Thus, the ultimate test is that `"`[a]n information will not be set aside or prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." [Citation.]" (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p. 1226.)
The appellate court "review[s] the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial courts ruling was reasonable." (Ibid.)
C. The evidence establishes probable cause to believe that respondent is guilty of the charged offenses in light of his status as a qualified patient.
In this case, there is ample evidence establishing probable cause to believe that appellant is guilty of the charged offenses in light of his status as a qualified patient. First, Molyneux testified that in his expert opinion the marijuana at issue was possessed for purpose of sale. Second, respondent admitted growing marijuana for members of the Nichols family, including Tad and Patty. There is no evidence that Patty was a qualified medical marijuana patient. Respondent admitted providing marijuana to Tad and receiving approximately $500 from him. Other than respondents assertion that he saw Tads medical marijuana recommendation when he met Tad, there is no evidence that Tad is a qualified medical marijuana patient. Third, there was no proof that respondent was a qualified primary caregiver to anyone as defined in the CUA. Fourth, numerous "glory photos" of respondent posed with marijuana, money and firearms were seized. Fifth, four firearms were found in places where marijuana/marijuana products or items related to the growing/processing of marijuana also were kept. Sixth, a device to label kef "Parra Farms" was seized. Seventh, a large amount of cash was found on respondents person and in his residence. Eighth, there were several important discrepancies between respondents testimony and Jo Anns testimony. Ninth, respondent did not tell deputies when he was arrested that he was operating a co-operative and could not provide the names or contact information of people to whom he provided marijuana.
Considered in its entirety, the evidence presented at the preliminary hearing was more than sufficient to establish probable cause to believe that respondent was guilty of the charged offenses in light of his status as a qualified patient. Although respondent legally could cultivate and possess marijuana for his own personal medical use within the limits prescribed in the medical marijuana recommendation signed by Dr. King, respondent was not authorized to cultivate or possess marijuana for any reason other than his own personal medical use. The CUA does not legalize simultaneous cultivation or possession of marijuana for both medical and nonmedical purposes. (Trippett, supra, 56 Cal.App.4th at pp. 1546-1547.) Even assuming, for purposes of this discussion only, the total amount of seized marijuana plants, processed marijuana and marijuana products was less than that which could be obtained from 99 plants, there is ample evidence establishing probable cause to believe that appellant cultivated and possessed some of the marijuana for the purpose of sale. Despite enactment of the CUA, the acts of cultivating and possessing large quantities of marijuana for the purpose of sale remain criminal. (People v. Rigo, supra, 69 Cal.App.4th at p. 415; People v. Young, supra, 92 Cal.App.4th at p. 237.) There is no evidence that respondent was a qualified primary caretaker within the meaning of the CUA and no proof that he could legally furnish marijuana to other people such as Tad or Patty. Therefore, we conclude as a matter of law that the evidence presented in support of the information is sufficient and that the dismissal motion should have been denied.
Although the superior court wrote that "[c]learly" the amount of marijuana and marijuana products seized from respondents residence is less than that which could be obtained from 99 plants, it did not support this assertion with a reference to evidence produced at the preliminary hearing. This is not a self-evident factual proposition. None of the witnesses at the preliminary hearing unequivocally testified that the total amount of seized marijuana and marijuana products is less than that which would be obtained from 99 plants. Molyneux testified that he could not tell how many individual plants the marijuana found in respondents residence came from and he could not estimate how much each of these individual plants would have yielded in dry, manicured bud. Molyneux did not know how much kef can be obtained from a particular amount of marijuana.
DISPOSITION
The order granting the dismissal motion is reversed and the matter is remanded to the superior court with directions to enter a new order denying the dismissal motion and reinstating the information.
We Concur:
Harris, Acting P.J.
Wiseman, J.