Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM023868
HULL , J.This case tenders issues about the Compassionate Use Act of 1996 (CUA) and the Medical Marijuana Program Act (MMPA). (Health & Saf. Code, §§ 11362.5 & 11362.7 et seq.)
A jury convicted defendant Michael George Roberts of transportation of marijuana, a felony, and evading a peace officer, a misdemeanor. (Health & Saf. Code, § 11360, subd. (a); Veh. Code, § 2800.1.) Three prior prison terms and two prior strikes, for murder and assault with a deadly weapon, were tried to the court. Before ruling on the priors, the trial court granted defendant’s motion to modify the verdict, reducing the felony offense of transportation of marijuana to the misdemeanor offense of possession of over an ounce of marijuana. (Health & Saf. Code, § 11357, subd. (c).) The court sentenced defendant to a year in jail.
The People timely appealed, and we reversed, finding the verdict was not contrary to the law or the evidence. (People v. Roberts (Oct. 28, 2008, C053705) [nonpub. opn.] (Roberts I).)
On remand, defendant moved for a new trial based in part on instructional error, the trial court granted the motion, and the People again timely appealed.
The trial court held that an instruction on local marijuana quantity limits authorized by the MMPA was flawed, because the MMPA unconstitutionally amended the CUA. The California Supreme Court later agreed the MMPA was, in pertinent respects, unconstitutional. (People v. Kelly (2010) 47 Cal.4th 1008 (Kelly).)
The People contend that the new trial motion was an improper successive motion, that there was no instructional error, that defendant invited instructional error if there was any, and that instructional error, if it occurred, was not prejudicial.
We conclude defendant’s motion to modify the verdict was not a new trial motion, therefore the motion for a new trial was not a successive motion. In light of Kelly, we conclude the trial court should not have instructed the jury about the Butte County guidelines. We conclude the invited error doctrine did not bar defendant’s attack on the guidelines instruction, because at the time of trial, that instruction correctly stated the law, and trial counsel effectively had no tactical decision to make. Finally, although we might have ruled differently, in reviewing an order granting a new trial, we must defer to the trial court’s assessment of prejudice. Because the trial court’s ruling was not arbitrary, we shall affirm the order granting a new trial.
Facts and Proceedings
There is no dispute that on October 16, 2005, defendant was found with a pound and a half of marijuana in his pickup truck. The issue at trial was the purpose behind his possession.
Defendant was charged with three felonies, domestic abuse (Pen. Code, § 273.5, subd. (a)), transportation of over an ounce of marijuana (Health & Saf. Code, § 11360, subd. (a)) and wanton evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)).
We recite the facts from Roberts I:
“Early in the morning of October 16, 2005, defendant arrived at the Chico substation, agitated and yelling that he lost his dogs and his marijuana. When defendant threatened to break into the pound to recover his dogs, the police told him he would be arrested. Defendant threatened ‘to do violence to the [district attorney].’
“Later that day, Detective Eric Christopher was called out to a residence in Nelson to do a welfare check. He found Lee Ann Garrabrant, who was upset and had finger marks on her neck. Garrabrant lived with defendant; both had physician recommendations for marijuana and grew it together. She wanted to leave and appeared to be looking for defendant’s return.
[] “The parties stipulated both defendant and Garrabrant had a signed physician recommendation for use of medical marijuana.”
“Sergeant Tom Coleman was on patrol that night and received a call to be on the lookout for defendant in his brown pickup truck. Coleman located defendant at the Butte Creek trestles between Nelson and Durham. Defendant was speeding. Coleman made a U-turn, activated his lights and siren, and pursued defendant. He followed defendant into the town of Nelson. Defendant violated various traffic laws and eventually stopped in his driveway. Defendant then struggled with the officers, so Coleman and his partner fired their tasers and defendant went to the ground. Defendant said he did not stop when pursued because he did not trust cops and was afraid of them.
“Deputy Douglas Patterson arrived at the scene and searched defendant’s truck. Before he even entered it, he smelled a strong odor of marijuana and said, ‘it smells like weed.’ Defendant said the marijuana was his and he had Prop 215. Inside the truck were eight packages of marijuana, totaling 1.593 pounds. Under Butte County guidelines, a person can possess a pound of processed marijuana for medicinal uses. [¶]... [¶]
“At trial, defendant’s cousin, Richard Wood, testified he also had a recommendation for medical marijuana and grew marijuana with defendant at defendant’s residence in Nelson. On October 16, the marijuana was harvested and they were going to weigh it to comply with the county guidelines permitting one pound per person. Defendant came to Wood’s house in Durham for that purpose, but Wood had unexpected company, so they could not weigh it then. Defendant left with the marijuana. The marijuana was to be split three ways between defendant, Wood, and Garrabrant.”
(Roberts I, supra, C053705.)
There was a minor conflict in the testimony we did not mention in Roberts I. Garrabrant testified she and defendant grew 12 plants. Wood testified there might have been 18 plants, to be divided between defendant, Wood, and Garrabrant, but he was not sure.
As to the transportation count, the jury was instructed in part (CALCRIM No. 2361) that the CUA “allows a person to possess or transport marijuana for personal medical purposes when a physician has recommended such use. The amount of marijuana possessed or transported must be reasonably related to the patient’s current medical needs. In deciding if marijuana was transported for medical purposes, also consider whether the method, timing, and distance of the transportation were reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.”
However, the jury was also instructed: “The California Health and Safety Code gives Butte County the authority to promulgate medical marijuana guidelines. Butte County’s Guidelines for medical marijuana with a doctor’s recommendation include, among other things: [¶] One pound of processed marijuana.” This instruction was in accord with the MMPA, which sets forth a quantity limit of eight ounces of processed marijuana, but allows a city or county to establish other limits. (Health & Saf. Code, § 11362.77, subds. (a) & (b).)
The People asked for an instruction that, to establish a medical marijuana defense, the amount of marijuana defendant possessed had to be for his “personal medical use during the duration of that trip, ” but the trial court sustained defendant’s objection to this instruction.
Nonetheless, over defense objection, the prosecutor argued defendant possessed more marijuana than reasonably medically necessary for that particular trip.
Outside the presence of the jury, the defense sought a clarifying instruction, because the prosecutor had argued the law so narrowly: The defense asked for a modification to read that transportation was lawful if reasonably related to “current medical needs or to comply with county guidelines.” With a minor suggestion, the prosecutor stated “I don’t mind that curative instruction. I don’t think it really adds a lot. He can argue the other way too....” Despite the People’s acquiescence, the trial court overruled the defense request for a clarifying instruction.
Defense counsel then argued defendant acted within the law, because the marijuana in the truck amounted to less than a pound per person, whether divided between defendant and Garrabrant or between them and Wood. The defense also argued it was reasonable for defendant to transport the marijuana in order to weigh it: “What would a reasonable Butte County resident do who has a medical recommendation? Well, that person would try to comply with Butte County’s guidelines. [¶] Mr. Roberts was trying to comply with the Butte County guidelines, and now he’s being prosecuted for that.”
In rebuttal, the prosecutor argued that only defendant’s medical needs were relevant, and “it was not necessary to drive to Durham. He could have borrowed the scales, [or], if some of it was [Woods’ marijuana], had him come over and get it.” “The [medical marijuana] proposition doesn’t anticipate people having large amounts of marijuana out in public. It is, the transportation has to be reasonably related to his current medical needs, okay? That’s narrow enough for you to decide that he can’t be carrying around somebody else’s, and he did not have any current medical need to carry around over a pound and a half of marijuana with him. [¶] He had other options than bringing it out into the general public.”
The jury found defendant guilty of felony transportation, acquitted him of domestic violence, and found him guilty of the lesser offense of misdemeanor evading an officer.
Defendant then moved to modify the verdict, based on misinstruction of the jury regarding the CUA. Specifically, defendant asserted that until the parties rested, the People’s theory had been that defendant transported the marijuana for sale, but during trial the People changed the theory and alleged transportation for personal use: Because of this, defense counsel requested a curative instruction “that the jurors be told that the transportation has to be reasonably related to the patient’s current medical needs, or transported in order to comply with Butte County’s Guidelines. The district attorney agreed that this curative instruction would be appropriate. The court agreed that the Compassionate Use defense jury instruction 2361 was vague but declined to give a curative instruction. Instead, the court allowed [defense counsel] to make the above argument to the jury.” The defense asked for a reduction of the verdict to misdemeanor possession of more than an ounce of marijuana.
The People argued the motion did not show a material misinstruction. In part the People noted defendant “never claimed to be a primary caregiver or claimed to be assisting a patient in the direct application of marijuana for the patient’s immediate medical needs[.]”
The trial court granted the motion to modify the verdict, in part stating: “The defendant and two others were all qualified patients under the [MMPA]. Each of them had a doctor’s recommendation for the use of medical marijuana. The defendant cultivated and processed the marijuana at his property, on his property for all three medical marijuana users. It was to be weighed and distributed at Mr. Woods’ house, as he testified. And while traveling to Mr. Woods’ house, the defendant was stopped with approximately 24 ounces in his possession.” The court concluded the felony verdict for transportation of marijuana was “contrary to law and evidence” and reduced the verdict to the misdemeanor of possession of over an ounce of marijuana. The trial court’s view was that defendant acted lawfully by possessing a pound, but unlawfully in possessing the extra half-pound “above the guidelines.”
The People filed a timely notice of appeal.
On October 28, 2008, we issued an opinion on rehearing. In part we held: “The trial court did not err in failing to instruct sua sponte on the primary caregiver defense because there was insufficient evidence to support such an instruction.” (Roberts I, supra, C053705.) “The undisputed evidence established defendant was transporting a pound and a half of marijuana. There was no evidence all of the drugs were necessary for his medical needs; rather, defendant claimed he was transporting drugs for others as well as himself. Since neither the CUA nor the [MMPA] provides a defense for transporting medical marijuana for others unless one is a primary caregiver or a person providing assistance with administering or cultivating marijuana [citation], the verdict, a conviction for felony transportation of marijuana [citation], was not contrary to the law or the evidence. The trial court abused its discretion in modifying the verdict under Penal Code section 1181, subdivision 6.” (Roberts I, supra, C053705.)
In a portion of our opinion addressing a rehearing petition, we noted that two then-recent decisions had invalidated the quantity limitations of the MMPA, as an unconstitutional legislative amendment of the CUA initiative. We stated that if the Butte County guidelines adopted pursuant to the MMPA were invalid, “there may be an effect on defendant's conviction. This appeal, however, is a People’s appeal from an order reducing the conviction from a felony to a misdemeanor; the merits of the conviction are not before us. Defendant’s remedy, if any, lies in an appeal from the judgment.” (Roberts I, supra, C053705.)
Our disposition stated: “The order modifying the verdict is reversed and the matter is remanded to the trial court with directions to reinstate the verdict of conviction... and for further proceedings.” (Roberts I, supra, C053705.)
After the remittitur, defendant filed a motion for a new trial, contending the jury was misinstructed, because the MMPA unconstitutionally amended the CUA.
The People argued the trial court could not consider the motion for a new trial, because it was a secondmotion for a new trial, and the only viable ground for a successive motion for a new trial was incompetence of counsel. The People also noted the defense had requested the instruction at issue. The People argued any instructional error was harmless, because defendant did not show he was a primary caregiver for others, or that the amount he possessed was reasonably related to his current needs.
The trial court granted the motion for a new trial as to the transportation count. The trial court did not address the successive motion objection raised by the People, and declined the People’s request that it explicitly address the question of prejudice.
The People filed another timely notice of appeal. The appeal lies. (Pen. Code, § 1238, subd. (a)(3).)
While this appeal was pending, the California Supreme Court held the quantity limits of the MMPA were invalid to the extent such limits burdened a defense, but not invalid to the extent such limits provided a “safe harbor” for qualified patients. (Kelly, supra, 47 Cal.4th at pp. 1015-1017 & fn. 9, 1048-1049.)
Discussion
I
Successive New Trial Motions
The People contended defendant’s new trial motion could not be heard, because it was a successive motion. The trial court did not rule on this objection. The Attorney General reiterates the claim. We disagree with the Attorney General.
Although the doctrinal basis has shifted over time, as a general rule a criminal defendant may not make successive new trial motions. (People v. DeLouize (2004) 32 Cal.4th 1223, 1228; In re Levi (1952) 39 Cal.2d 41, 45, fn. * (Levi).) Although some cases suggested the rule was based on principles of jurisdiction (e.g., People v. Taylor (1993) 19 Cal.App.4th 836, 839-841), the better view is that it is a prudential rule. “[T]he rule against reconsidering the granting of a new trial motion is not properly grounded on the concept of jurisdiction, but on principles of fairness to the parties and the court and preventing endless rehearings and reconsiderations.” (People v. Rose (1996) 46 Cal.App.4th 257, 264; discussed with approval by DeLouize, at pp. 1230-1231.) It “directs [trial courts] to avoid extended new trial proceedings where possible, subject to reasonable exceptions in the interests of justice. [Citations.]” (People v. Stewart (1988) 202 Cal.App.3d 759, 763, see id. at pp. 761-763; see DeLouize, at p. 1228, fn. 1 [noting exceptions to the “general rule” barring successive new trial motions]; People v. Wisely (1990) 224 Cal.App.3d 939, 948 & fn. 21 [noting conflict in the case law].)
The seminal case for the proposition that the rule is jurisdictional does not support such view: The case held that permitting successive motions would delay the proceedings. (People v. Martin (1926) 199 Cal. 240, 242.) But it was later cited (e.g., by Levi, supra, 39 Cal.2d at p. 45, fn. *) for an observation made in dicta, to the effect that because an appeal had been taken before the second new trial motion was filed, the taking of the appeal, if not premature, would have divested the trial court of jurisdiction to consider the second motion. (Martin, at p. 242.) In this case, our remittitur revested the trial court with jurisdiction over the case. (See People v. Dutra (2006) 145 Cal.App.4th 1359, 1366.)
In any event we need not decide whether a second new trial motion would otherwise have been barred in this case, because we conclude defendant made only one new trial motion.
New trials in criminal cases are authorized by Penal Code section 1181, which provides in relevant part:
“When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶]
“5. When the court has misdirected the jury in a matter of law....
“6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial....”
“A new trial is a reexamination of the issue in the same Court, before another jury, after a verdict has been given.” (Pen. Code, § 1179.) “The granting of a new trial places the parties in the same position as if no trial had been had....” (Pen. Code, § 1180.)
Defendant’s first motion was a motion to modify the verdict, as provided by Penal Code section 1181, subdivision 6. Although such a motion is authorized by the same statute that authorizes new trial motions, the two motions are not the same.
Penal Code section 1181, subdivision 6 itself makes this clear, by stating that in certain circumstances “the court may modify the verdict, finding or judgment... without granting or ordering a new trial[.]” (Italics added; see People v. Lagunas (1994) 8 Cal.4th 1030, 1033 [this subdivision “permits modification of a verdict in lieu of granting a new trial”].) Defendant’s first motion did not seek a new trial and the trial court, in granting that motion, did not grant a new trial.
We also need not consider whether the post-Roberts I motion was timely. (Pen. Code, § 1182; see, e.g., People v. Smyers (1969) 2 Cal.App.3d 666, 668-669; People v. Pineda (1967) 253 Cal.App.2d 443, 448-454.) The Attorney General did not raise that claim in the trial court and has forfeited that claim on appeal by failing to head or argue it in his briefs. (See People v. Roscoe (2008) 169 Cal.App.4th 829, 840; People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.)
Accordingly, because defendant’s motion for a new trial following the remittitur was not a successive motion, we need not consider whether, in the circumstances of this case, a successive motion would otherwise have been permissible.
II
Invited Error Doctrine
The Attorney General contends any instructional error was invited because the instruction on the Butte County guidelines was requested by the defense. We disagree.
The invited error doctrine is a species of estoppel: “Where a party by his or her own conduct induces the commission of error, the party may be estopped from asserting it as a ground of reversal.” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 31, p. 489.)
The People introduced evidence of the Butte County guidelines. Generally, an instructional error will not be deemed invited when the instruction was requested to limit the effect of challenged evidence. (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 663, p. 954.) Further, at the time of trial the relevant law included the MMPA, and the Butte County guidelines adopted pursuant thereto. Trial counsel’s request for the instruction recognized the then-extant legal reality. (See People v. Cooper (1991) 53 Cal.3d 771, 830-831 [invited error will not be found where “counsel was ignorant of the choice” or court would not give a choice].) In effect, defense counsel cannot be deemed to have invited instructional error given the evidence and state of the law at the time. (See People v. Moon (2005) 37 Cal.4th 1, 28.)
III
Prejudicial Instructional Error
The Attorney General argues both that the instruction on the guidelines was not errorand that it was not prejudicial. We disagree with both points.
Whether an instructional error occurred is a legal question subject to de novo review on appeal. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 78; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1055.)
The Attorney General contends “the jury was fully and correctly instructed” because the challenged instruction “said nothing about the effect of exceeding the guideline. In particular, the jury was not instructed to presume that possession of more than a pound of marijuana was unreasonable.” In the reply brief, the Attorney General argues the instructions on the offense of transportation of marijuana and on the People’s burden of proof “precluded any reliance on the [Butte] County guideline to limit the CUA defense.”
The contention is not persuasive. The instruction stated: “The California Health and Safety Code gives Butte County the authority to promulgate medical marijuana guidelines. Butte County’s Guidelines for medical marijuana with a doctor’s recommendation include, among other things: [¶] One pound of processed marijuana.”
In our view there is “‘a reasonable likelihood’” (People v. Wade (1995) 39 Cal.App.4th 1487, 1491) that the jury would find this instruction on the guidelines meant no more than one pound could be possessed, and that accords with the arguments of the parties. Given that Kelly invalidated the statutory quantity limits in the MMPA except when used as a “safe harbor” (Kelly, supra, 47 Cal.4th at pp. 1015-1017 & fn. 9, 1048-1049), we conclude it was error for the trial court to instruct on the local quantity limits--albeit denominated as “guidelines”--adopted pursuant to the MMPA.
IV
The Trial Court Could Rationally Find Prejudice
Whether an instructional error caused prejudice is reviewed under the abuse of discretion standard, giving deference to the trial court’s ruling on a new trial motion. (People v. Gibson (1965) 235 Cal.App.2d 667, 669; People v. McCord (1936) 15 Cal.App.2d 136, 140 (McCord); see People v. Ault (2004) 33 Cal.4th 1250, 1263.)
The Attorney General urges us to find the error was harmless, but “seems to have overlooked the nature of this appeal. It is not an appeal from the judgment but is an appeal from the order granting a new trial. The question of whether error is prejudicial is a question for the determination of the trial court in ruling upon the motion for new trial and the trial court is allowed a wide discretion in making its determination of this question. Where there is error in the record and the trial court grants a new trial because of such error, its ruling should not be disturbed unless it clearly appears that the trial court has abused its discretion.” (McCord, supra, 15 Cal.App.2d at p. 140.)
As we have said before, “much less by way of prejudice is required before a trial court may grant a motion for a new trial than where the appeal is from a judgment.” (People v. Williams (1960) 179 Cal.App.2d 487, 491.) “Many questions of fact are involved in deciding such a motion and a trial judge is necessarily in a better position to pass upon the effect which any errors may have had upon the jury than is an appellate court. Conceding that this motion could well have been decided the other way, the fact remains that it cannot be held that an abuse of discretion clearly appears, or that the order made is entirely without support in the record.” (People v. Perkin (1948) 87 Cal.App.2d 365, 370.)
The Attorney General contends that in Roberts I, we held defendant had not presented any evidence establishing a medical marijuana defense. But we made that point in the course of describing why the verdict was not contrary to the law and evidence, in the People’s appeal from the order reducing the verdict. We emphasized that “if [the guidelines adopted pursuant to the MMPA] are unconstitutional, there may be an effect on defendant’s conviction.” (Roberts I, supra, C053705.) Thus, Roberts I does not show that the instructional error was harmless: We left the point open.
The Attorney General contends that “The defense theory was not that defendant needed the full pound and half of marijuana for his own medical needs, but that he was transporting it to weigh it for compliance with county guidelines.” However, the trial court could rationally conclude that had the jury not been instructed that defendant could possess only one pound, it would be more inclined to accept the defense theory that defendant was possessing marijuana legitimately. Moreover, had the parties known that the one-pound limit was invalid, defendant’s trial strategy might well have been different.
Although not mentioned in the order granting a new trial, the court refused to give an instruction requested by the defense and agreed to by the People that would have clarified that it was legally permissible for defendant to transport marijuana “to comply with county guidelines, ” meaning, to weigh out the marijuana. This allowed the prosecution to argue the law did not permit the tendered defense. The trial court could conclude that the effect of not giving the agreed-to clarifying instruction exacerbated the possible harm from the erroneous instruction on the guidelines.
Finally, in People v. Wright (2006) 40 Cal.4th 81, the court held an error in not giving a CUA defense instruction as to a charge of transportation of marijuana was harmless, because in that case the jury also convicted the defendant of possession for sale of marijuana: “Under the instructions it was given, the jury had the option of convicting defendant for simple possession had it been convinced by his claim that the marijuana found in his possession was for his personal medicinal use. Instead, it found beyond a reasonable doubt that he possessed the drug with the specific intent to sell it. Accordingly, ‘the jury necessarily resolved, although in a different setting, the same factual question that would have been presented by the missing instruction[.]’” (Id. at p. 99.) No similar conclusion can be derived from the verdicts in this case.
We conclude the trial court did not act arbitrarily by concluding the instructional error caused prejudice.
Disposition
The order granting defendant a new trial is affirmed.
We concur: BLEASE, Acting P. J. RAYE, J.