Opinion
C076070
04-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN SCHULZE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F-13-464)
Following months of investigation, defendant Michael John Schulze was charged with multiple counts involving the manufacture and possession of concentrated cannabis, cultivation of marijuana, possession of marijuana for sale, possession of a firearm by a felon, and being an unlicensed driver. A jury convicted him of cultivating marijuana, possessing marijuana for sale and driving without a driver's license.
Defendant now contends (1) the trial court erred in denying his request to call a former Modoc County District Attorney as a witness at trial; (2) the trial court erred in granting the petition to withdraw by his attorney without his consent and without giving him an opportunity to respond and the record does not show that he voluntarily requested to represent himself; (3) we should review the sealed record to determine whether his rights under Massiah v. United States (1964) 377 U.S. 201 (Massiah) were violated when the trial court precluded him from cross-examining Modoc County Deputy Sheriff Mike Klassen about his conversations with a person later appointed to help defendant's advisory counsel and whether the trial court erred in sustaining a witness's exercise of his Fifth Amendment right against self-incrimination; (4) the trial court erred in denying his motion for a new trial because Deputy Klassen omitted facts from his affidavits in support of the search warrants for 640B Bobcat Lane and 314 Chukar Lane, thereby misleading the magistrate who issued the warrants; (5) reversal is required because charges were brought against him in retaliation for the exercise of his constitutional rights; (6) Deputy Klassen engaged in outrageous conduct requiring reversal of the convictions; and (7) cumulative error requires reversal.
We will affirm the judgment.
BACKGROUND
Deputy Sheriff Mike Klassen saw 23 live marijuana plants at a property on Jaguar Lane in the Modoc Recreational Estates in Modoc County on July 18, 2012. Doctor's recommendations for defendant, Dorotha Thompson, Gabriel Carter and Michael Graham Schulze were posted at the site. Deputy Klassen did not take enforcement action.
Deputy Klassen met defendant when the latter went to Deputy Klassen's office later that day in response to the Jaguar Lane visit. Defendant told Deputy Klassen he intended to sell marijuana and had a license to do so. Defendant provided Deputy Klassen with a copy of a seller's permit issued by the California State Board of Equalization to "Sons of CA Growers & Pt Alliance" which had an address on Highway 101 in Smith River, California. The permit states "Sons of CA Growers & Pt Alliance" was "authorized pursuant to sales and use tax law to engage in the business of selling tangible personal property at the above location. This permit is valid only at the above address." The permit was not transferable.
At some point, defendant reported that the marijuana at the Jaguar Lane grow site had been stolen. Defendant told Deputy Klassen he supplemented his income with that marijuana.
Defendant objected to local regulation of medical marijuana at Modoc County Board of Supervisors meetings in March, July and August 2013. At some point, defendant brought 12 live marijuana plants to a board meeting. He wanted to give the plants away to prove that he could. He told Deputy Klassen he could sell marijuana and offered to sell Deputy Klassen marijuana but did not go through with the sale.
Undersheriff Kenneth Richardson saw marijuana plants growing at 314 Chukar Lane in May 2013. Defendant rented 314 Chukar Lane. Defendant told Undersheriff Richardson he owned all or some of the marijuana plants and he had marijuana at multiple locations.
Deputy Klassen began to conduct surveillance at Jaguar Lane and 314 Chukar Lane in the spring of 2013. He observed defendant driving a red pickup truck along Bobcat Lane. A citizen informant reported that defendant spent the evenings somewhere along Bobcat Lane. After observing defendant's activities himself, Deputy Klassen believed defendant lived somewhere on Bobcat Lane. Deputy Klassen found out defendant did not have a driver's license.
On September 11, 2013, Deputy Klassen conducted an overflight of the Modoc Recreational Estates to look for illegal marijuana grows. He saw marijuana grow sites at 645 Wood Duck Lane, 640B Bobcat Lane and 314 Chukar Lane. He saw about 24 marijuana plants at 640B Bobcat Lane and another approximately 24 marijuana plants at 314 Chukar Lane.
Deputy Klassen visited 645 Wood Duck Lane later that day. James Cramton was at that location. There were 24 live marijuana plants at 645 Wood Duck Lane. Cramton showed Deputy Klassen doctor's recommendations for defendant and Cramton. Cramton said 12 of the plants were for his personal use and the other 12 belonged to defendant. Deputy Klassen had the marijuana plants at 645 Wood Duck Lane destroyed because he determined the grow site was not in compliance with Modoc County Ordinance No. 349-B in that there was no permitted residence, well or septic system at the property. Deputy Klassen opened a formal investigation on defendant because he believed defendant was possessing marijuana for sale.
Section 2 of Modoc County Ordinance No. 349-B provided that outdoor cultivation of medical marijuana was prohibited except when all of the following conditions existed: (1) the cultivation of a total of 12 or fewer medical marijuana plants per qualified patient, (2) a maximum of two patients on any assessor's parcel, (3) assessor's parcels used for cultivation shall contain at least one properly permitted inhabitable residence, and (4) notarized, written permission for medical marijuana cultivation from the property owner of record if the property is not owner occupied.
An informant told Deputy Klassen defendant sold marijuana through the mail. Deputy Klassen continued to conduct surveillance on defendant.
On October 16, 2013, Deputy Klassen saw defendant driving a white pickup truck on Pencil Road, between Chukar and Bobcat Lanes. Deputy Klassen stopped the truck. Defendant was in the driver's seat. He was placed under arrest for driving without a license. Deputy Klassen detected the odor of live marijuana on defendant's person. He saw an electric-powered marijuana bud trimmer, an electronic digital scale, a large capacity Ziploc vacuum bag, and a cigarette pack containing a partially smoked marijuana cigarette in the truck. Defendant had $1,141 in cash. Defendant later told Undersheriff Richardson the bud trimmer belonged to him and he was losing $3,200 a day without his bud trimmer. Defendant did not say the bud trimmer belonged to a medical marijuana collective. Defendant told Undersheriff Richardson he used a pound of marijuana a week and the loss of the bud trimmer made it hard for him to get his medicine.
Deputy Klassen ran defendant's criminal history and discovered defendant was a convicted felon and had marijuana and firearms violations in another state. Deputy Klassen then prepared search warrant applications for 314 Chukar Lane and 640B Bobcat Lane. He and at least seven other law enforcement officers executed the search warrants on October 23, 2013.
Michael Easterwood was the only person at 314 Chukar Lane when the warrant for that location was served. Officers located objects in the residence which California Department of Justice special agent supervisor Jack Nelsen opined were consistent with the manufacture of concentrated cannabis. There were also 124 live immature marijuana plants, grow lights, fans, and a useable amount of marijuana trim in one of the rooms of the residence. Three adult marijuana plants were in a fenced-in grow area outside the residence. More marijuana, laid out to dry, was found inside a camper trailer next to the grow area. Photographs from cameras overlooking the outdoor grow area showed defendant harvesting marijuana and carrying bushels of marijuana on multiple dates in October 2013. Deputy Klassen estimated there were about 10 to 13 pounds of dry or drying marijuana at 314 Chukar Lane. Deputy Klassen placed Easterwood under arrest.
Officers found doctor's recommendations for Anthony Brannon and Dorotha Thompson. Deputy Klassen left 12 marijuana plants at 314 Chukar Lane because he determined there was only one valid doctor's recommendation for that location and Modoc County Ordinance No. 349-B allowed 12 plants for each patient.
Darlene Jarvis rented the residence at 640B Bobcat Lane. She allowed defendant to stay with her. Defendant was at the front door of the residence with a person later identified as Nathan Clark as officers approached the residence. Defendant went inside the house and closed the door behind him. Deputy Klassen and the other officers forced entry into the house. Defendant was in the living room. No one else was in the house.
A wallet containing Jarvis's Florida driver's license and credit cards was found in an upstairs bedroom. Officers found defendant's wallet with $868 in cash and a calendar with notes of bank transactions in the living room. Mail and other paperwork addressed to defendant and men's clothing were in a dresser in a downstairs bedroom. There was a firearm in the closet of that bedroom. Jarvis claimed ownership of that gun. Several prescription bottles bearing defendant's name were in the downstairs bathroom. Other records relating to defendant, including bank statements for accounts in defendant's name, were found in the residence. The bank statements showed deposits for $2,500, $3,000, $4,000 and $5,000. Officers found other firearms. No ammunition was found. Defendant's fingerprints were not found on any of the firearms.
Police found a U.S. Bank statement for an account in defendant's name showing deposits totaling $7,500 in August 2013. It is unclear whether that statement was found at 640B Bobcat Lane.
Three or four bags of marijuana were in a Tupperware container in the house. Sixty to 80 pounds of additional marijuana was found in different stages of processing in the detached garage. There were no growing marijuana plants. There was no doctor's recommendation for Jarvis found at 640B Bobcat Lane.
Deputy Klassen testified at trial he had evidence that defendant was growing marijuana with "up to maybe six or seven people." But Deputy Klassen had seen no evidence that defendant was part of a marijuana collective or cooperative. Cramton testified that defendant was trying to build a collective. Cramton said he was a qualified patient and he worked collectively or cooperatively with defendant, but he never belonged to a collective and never signed a document saying he was a member of a collective.
Deputy Klassen provided expert opinion testimony that the marijuana found at 314 Chukar Lane and 640B Bobcat Lane was possessed with intent to sell. His opinion was based on the quantity of marijuana found, the condition of the property, the presence of notebooks containing apparent pay-owe records and a calendar showing deposits of large amounts of money but in no case greater than $10,000, the lack of indicia of personal use of large quantities of marijuana, and the amount of cash found in defendant's wallet. Deputy Klassen opined the amount of cash in defendant's wallet was large in comparison to defendant's stated monthly income.
There was no evidence of how much marijuana defendant reasonably needed for medical purposes.
The jury found defendant guilty of the crimes of cultivating marijuana (Health & Saf. Code, § 11358—count three), possessing marijuana for sale (id. at § 11359—count five) and driving without a driver's license (Veh. Code, § 12500, subd. (a)—count eleven). The jury acquitted defendant on the charges of manufacturing of concentrated cannabis (Health & Saf. Code, §11379.6, subd. (a)—count one), conspiracy to manufacture concentrated cannabis (§ 182, subd. (a)(1); Health & Saf. Code, § 11379.6. subd. (a)—count two) and possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)—count six). The jury could not reach a verdict and the trial court declared a mistrial on the possession of a firearm by a felon counts (Pen. Code, § 29800, subd. (a)(1) —counts seven through ten) and the section 12022, subdivision (a)(1) firearm allegations in counts three and five. The People dismissed the count four charge of conspiracy to cultivate marijuana (§ 182, subd. (a)(1); Health & Saf. Code, § 11358).
Undesignated statutory references are to the Penal Code.
The trial court imposed a sentence of three years eight months.
DISCUSSION
I
Defendant contends the trial court erred in denying his request to call former Modoc County District Attorney Christopher Brooke as a witness at trial.
A criminal defendant has a right to present a defense. (Washington v. Texas (1967) 388 U.S. 14, 19 [18 L.Ed.2d 1019, 1023].) However, the trial court retains broad discretion to exclude evidence it determines has little probative value and would require an undue consumption of time or create a danger of confusing the issues or misleading the jury. (Evid. Code, § 352.) On appeal, we defer to the trial court's determination unless it appears the court "exercised its discretion ' "in an arbitrary, capricious or patently absurd manner." ' " (People v. Frye (1998) 18 Cal.4th 894, 948, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The application of the ordinary rules of evidence such as Evidence Code section 352 generally does not impermissibly infringe upon a defendant's constitutional rights. (People v. Prince (2007) 40 Cal.4th 1179, 1238.)
Prior to trial, defendant submitted a list of 46 potential trial witnesses. He said he might call five witnesses associated with the Modoc County District Attorney's Office to testify concerning his statement to Brooke about Deputy Klassen's alleged illegal activities against defendant. The People filed an in limine motion requesting that defendant make an offer of proof regarding the testimony to be elicited from his potential witnesses.
Defendant explained that he went to the Modoc County District Attorney's Office when he was "getting ready to get a collective going," he gave his telephone number to unspecified persons at the district attorney's office, asked to be notified if he or the people he associated with did anything contrary to the law, and promised "to stop it right like that" upon such notice. Defendant argued that the evidence he sought to present from the district attorney's office witnesses was relevant to his efforts to comply with the law and his contention that he was "a legal small town medical marijuana farmer" who was "unfairly picked on."
The trial court expressed concerned that the district attorney's office witnesses would present cumulative testimony. Defendant, thus, agreed to limit those to Sophia Meyer and Luvina Albright, but defendant said he still wanted to call Brooke as a witness. Defendant described the conflict between Deputy Klassen and Brooke. He claimed Modoc County law enforcement officers opposed Brooke and Brooke ultimately resigned and left town in fear for the safety of his family. Defendant appeared to draw an analogy between what happened to him and what happened to Brooke. He said he publicly criticized Deputy Klassen and questioned Deputy Klassen's integrity in a newspaper article and he was prosecuted because of his statements against Deputy Klassen. Defendant wanted to ask Brooke why he left Modoc County and elicit Brooke's opinion about whether defendant's arrest was related to his public criticism of Deputy Klassen.
The trial court ruled that Brooke's opinion about the reason for defendant's arrest was inadmissible. It said local law enforcement authorities generally disliked Brooke because they thought Brooke was not capable and the dynamic which caused Brooke to leave town was a lot broader than defendant's opposition to Modoc County's position on medical marijuana. The trial court said it did not want to introduce all of the evidence about the conflict between Brooke and local law enforcement at the trial. And it denied defendant's request to call Brooke as a witness.
Albright and Meyer testified at the trial. Albright recalled defendant asking then District Attorney Brooke to investigate Deputy Klassen. Albright did not recall Brooke's response. Albright also recalled that defendant visited Brooke's office and tried to talk to Brooke about laws governing marijuana in Modoc County. She testified that defendant gave Brooke his telephone number and said if there was a legal question, Brooke should call defendant and defendant would come down.
Meyer testified she had seen defendant at the district attorney's office many times and defendant spoke with Brooke. Meyer did not know what Brooke and defendant discussed. She said Brooke and Deputy Klassen had different ideas about marijuana cultivation law in Modoc County.
On appeal, defendant argues that Brooke's testimony was relevant to whether defendant cultivated and possessed marijuana for sale and to defendant's honest and reasonable belief that the laws prohibiting cultivation and possession of marijuana were not applicable to him or that he had complied with those laws. Defendant claims Brooke gave him advice about the lawful cultivation of marijuana and told him he would not be prosecuted for growing marijuana, but defendant does not cite any part of the record supporting those factual assertions. We need not consider assertions unaccompanied by record citations. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743.) In any event, defendant's offer of proof does not establish his appellate claims.
" 'It is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise,' and a specific offer of proof is necessary in order to preserve an evidentiary ruling for appeal. [Citation.]" (People v. Brady (2005) 129 Cal.App.4th 1314, 1332; see Evid. Code, § 354, subd. (a).) " 'An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.' [Citation.]" (People v. Brady, supra, 129 Cal.App.4th at p. 1332; see People v. Foss (2007) 155 Cal.App.4th 113, 127-128.) And it is a fundamental rule of appellate practice that the correctness of a trial court ruling is determined "at the time it was made." (People v. Farley (2009) 46 Cal.4th 1053, 1082; People v. Hartsch (2010) 49 Cal.4th 472, 491.)
Defendant's offer of proof was that defendant informed the district attorney's office he was going to start a marijuana collective and defendant asked the district attorney's office to let him know if he was not complying with the law. Defendant did not claim, at the offer of proof hearing, that Brooke gave him any advice or that Brooke said he would not prosecute defendant for violating laws regulating marijuana cultivation or possession. Instead, in the context of describing how he tried to get the district attorney's office to prosecute Deputy Klassen for attempted murder, defendant said Brooke told him Brooke would not prosecute Deputy Klassen nor defendant. But defendant did not specify a crime for which Brooke purportedly said defendant would not be prosecuted. In any event, Brooke's opinion about whether defendant's marijuana collective was lawful would be inadmissible. (People v. Jones (2013) 57 Cal.4th 899, 950 [legal conclusions are inadmissible]; Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599 [testimony pertaining to a question of law is properly excluded]; see also People v. Torres (1995) 33 Cal.App.4th 37, 45-46 [it is not the province of a witness to testify as to what constitutes a crime].)
Defendant does not specify when Brooke made the alleged statements. Thus, defendant has not shown that Brooke's alleged statements would be relevant to his intent or state of mind on October 23, 2013.
Defendant also contends the trial court abused its discretion by excluding Brooke's testimony under Evidence Code section 352. Defendant's Evidence Code section 352 claim is based on Brooke's alleged advice to defendant and assurance that defendant would not be prosecuted for marijuana-related crimes. For the reasons we have stated, no trial court error has been shown. Further, defendant's argument at the pretrial hearing focused largely on the conflict between Deputy Klassen and Brooke and Deputy Klassen and defendant. It was reasonable for the trial court to conclude that any probative value in the testimony defendant intended to elicit from Brooke was substantially outweighed by the probability that its admission would necessitate undue consumption of time at trial and create a substantial danger of confusing the issues for the jury.
Defendant further asserts in summary fashion that Brooke's testimony and evidence of a letter by a district attorney employee were relevant to his defense of vindictive prosecution. We do not address the claim because it is made perfunctorily and without supporting argument. (People v. Whalen (2013) 56 Cal.4th 1, 72, fn. 28; People v. Earp (1999) 20 Cal.4th 826, 881.)
II
Defendant next contends the trial court erred in granting the petition to withdraw as counsel by defendant's attorney Richard Cotta, Jr., without defendant's consent and without giving defendant an opportunity to respond.
A
Cotta attempted to obtain defendant's agreement to permit Cotta to withdraw, but defendant refused to sign a substitution of counsel allowing the withdrawal. Cotta then made an application to be relieved as counsel. Cotta declared, under penalty of perjury, that defendant told Cotta he intended to fire Cotta and proceed in pro per. Cotta averred that based on defendant's demeanor and comments to Cotta, Cotta could no longer effectively represent and communicate with defendant and obtain defendant's assistance in preparing and presenting a defense. Cotta personally served defendant with a copy of his application. There is no opposition in the appellate record.
The trial court granted Cotta's withdrawal motion, but vacated that order eight days later. The trial court informed defendant at the next hearing that it had vacated its December 10 order, and Cotta represented defendant at that hearing. The trial court referred to Cotta as defendant's attorney without any disagreement by defendant.
Defendant then moved to proceed in pro per and to have Cotta act as advisory counsel only. Defendant did not ask the trial court to appoint an attorney to represent him, nor did he seek a continuance to find an attorney. And he did not indicate a change of heart regarding self-representation after the trial court warned him of the perils of self-representation. Defendant elected to proceed in pro per because he believed he could do a better job on his case than any attorney in Modoc County. He signed an advisement and waiver of right to counsel form, indicating that after considering the trial court's warnings against self-representation, he freely and voluntarily gave up his right to have an attorney represent him.
B
The attorney in a criminal action may be changed at any time before or after judgment or final determination, upon the consent of the client and attorney. (Code Civ. Proc., § 284, subd. 1; In re Martinez (1959) 52 Cal.2d 808, 813.) Absent the client's consent, the attorney may withdraw upon order of the trial court, based on an application by the attorney and after notice to the client. (Code Civ. Proc., § 284, subd. 2.) Whether to grant or deny a motion by an attorney to withdraw is within the sound discretion of the trial court and will be reversed on appeal only upon a clear showing of abuse of discretion. (People v. Sanchez (1995) 12 Cal.4th 1, 37, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
Defendant had an opportunity after he was served to oppose Cotta's application to be relieved as counsel. Although defendant claimed at a subsequent hearing that he filed something opposing Cotta's application, no such opposition is in the record before us. Although other information in the record reaffirms that the relationship between defendant and Cotta had broken down, our conclusion is based solely on the record before the trial court at the time it decided Cotta's application. (See People v. Sanchez, supra, 12 Cal.4th at p. 37.) Based on that record, we conclude the trial court did not abuse its discretion in initially granting the application, and it did not deprive defendant of the right to counsel of his choosing where good cause existed for relieving Cotta. (People v. Cohen (1976) 59 Cal.App.3d 241, 249.)
Defendant further asserts the record does not show that he voluntarily requested to represent himself. A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, 818-819, 835-836 [45 L.Ed.2d 562, 572-573, 581-582].) We review the entire record, including proceedings after the purported invocation of the right of self-representation, and determine de novo whether the defendant's invocation was voluntary and knowing. (People v. Marshall (1997) 15 Cal.4th 1, 24.) Our review shows no error in granting defendant's request for self-representation and for Cotta to act as advisory counsel.
As a threshold matter, defendant claims the trial court did not inform him that it had vacated its December 10, 2013 order relieving Cotta. Defendant says that once the trial court allowed Cotta to withdraw, defendant had no choice but to represent himself and accept Cotta in the lesser role of advisory counsel. But as we have explained, the record does not bear out defendant's claims. Having knowingly and voluntarily elected to represent himself and have Cotta act as advisory counsel only, defendant cannot now complain that the quality of his own defense amounted to a denial of effective assistance of counsel. (Faretta v. California, supra, 422 U.S. at p. 834, fn. 46.)
III
Defendant asked us to review the sealed record to determine whether his rights under Massiah, supra, 377 U.S. 201, were violated when the trial court precluded him from cross-examining Deputy Klassen about his conversations with Dan White, defendant's appointed legal clerk. The Attorney General agreed that we should review the sealed record.
A
Before trial began, defendant asked the trial court to appoint Dan White as a paralegal to assist Cotta. The trial court granted defendant's request.
During cross-examination, defendant asked Deputy Klassen whether he spoke to White sometime before the "raid." Deputy Klassen said he spoke to White at White's office. When defendant asked whether Deputy Klassen told White that Deputy Klassen would arrest defendant unless defendant left Modoc County, Deputy Klassen said the question called for privileged information. The trial court conducted an in camera hearing on the record but ordered the record of the in camera hearing sealed. Defendant and Cotta were not allowed to be present at that hearing.
Following the in camera hearing, the trial court allowed Deputy Klassen to answer the pending question, and Deputy Klassen admitted telling White that unless defendant left Modoc County, Deputy Klassen would arrest defendant. The trial court did not permit defendant to ask further questions about the conversation between Deputy Klassen and White. In particular, the trial court did not allow defendant to ask Deputy Klassen whether White was a confidential informant for Deputy Klassen. Defendant protested that if White was a confidential informant, the trial court should declare a mistrial because White was assisting in defendant's defense. The trial court declined the invitation based on the in camera hearing.
B
In Massiah, the United States Supreme Court "held that once a judicial proceeding has been initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant. [Citations.] To prevail on a Massiah claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citations.] 'Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.' [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66-67.)
Our review of the entire record including the sealed transcript of the January 28, 2014 in camera hearing discloses no basis for finding a Massiah error. The sealed transcript does not show that White elicited incriminating statements from defendant after defendant's right to counsel had attached. The sealed transcript shows no error by the trial court in precluding defendant from questioning Deputy Klassen further about his conversation with White. (Evid. Code, § 1040; Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274, 1283 [applying abuse of discretion standard].) Moreover, defendant does not claim he made any incriminating statements to White and he does not point to any part of the record wherein his statements to White were admitted at trial in violation of his Fifth and/or Sixth Amendment rights.
C
Defendant also asks us to determine from the sealed transcript whether the trial court erred in sustaining White's exercise of his Fifth Amendment right against self-incrimination.
The state and federal Constitutions provide that a witness may not be compelled to incriminate himself or herself. (People v. Trujeque (2015) 61 Cal.4th 227, 267.) The privilege against self-incrimination is accorded liberal construction. " '[T]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' [Citation.] In that regard, a witness's answers need not in themselves support a conviction under a criminal statute, but may 'furnish a link in the chain of evidence' needed to prosecute the witness for a crime. [Citation.] Ultimately, a trial court may reject an assertion of the privilege only when it appears to the court ' "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency" to incriminate.' [Citations.]" (Ibid., italics omitted.)
Defendant called White as a defense witness at trial. Upon advice of counsel, White asserted his Fifth Amendment right and refused to answer defendant's questions about whether White had acted as a paralegal to help defendant, whether Deputy Klassen told White that Deputy Klassen would "raid" defendant if he did not leave Modoc County, and whether defendant asked him to look into tobacco laws so that defendant could start a tobacco distribution company in Modoc County. Although the sealed transcript does not show that White's answers to defendant's questions would have a tendency to incriminate White, it is not perfectly clear from all the circumstances that the witness was mistaken, and defendant identifies no other basis for challenging the trial court's sustaining of White's assertion of the privilege. His claim lacks merit.
IV
Defendant argues the trial court erred in denying his motion for a new trial because Deputy Klassen's trial testimony demonstrated that Deputy Klassen omitted facts from his affidavits in support of the search warrants for 640B Bobcat Lane and 314 Chukar Lane, thereby misleading the magistrate who issued the warrants.
Defendant forfeited his appellate claim because he did not raise it in the trial court. (People v. Verdugo (2010) 50 Cal.4th 263, 309; People v. Dykes (2009) 46 Cal.4th 731, 808-809, fn. 22.) Assuming the appellate claim is not forfeited, the Attorney General contends defendant may not bring a motion for a new trial to re-litigate the denial of a pretrial motion to traverse the warrants and suppress evidence.
Defendant filed a pretrial motion to traverse the warrants, unseal the sealed portion of Deputy Klassen's probable cause affidavits which contained information obtained from a confidential informant, disclose the identity of the confidential informant, and suppress evidence found during the execution of the search warrants. The trial court ordered the unsealing of the sealed portion of Deputy Klassen's affidavits upon the People's consent and denied defendant's suppression motion, finding probable cause for the searches based on the averments in the unsealed portion of Deputy Klassen's affidavits.
After the jury rendered its verdict but prior to sentencing, defendant made an oral motion for a new trial on various grounds including that there was insufficient cause to issue the search warrants. Defendant argued Deputy Klassen's affidavits presented no evidence of illegal conduct, confidential informant Dan Marshall was an unreliable and incredible witness, Marshall's alleged statements to Deputy Klassen were not recorded, and Deputy Klassen was not credible. The trial court ruled defendant's motion was untimely and defendant could not challenge the issuance of the search warrant through a new trial motion.
But even if it had been proper for the trial court to consider defendant's posttrial motion (see People v. Jackson (1996) 13 Cal.4th 1164, 1203-1205) and defendant had stated grounds for a motion for a new trial under section 1181, defendant fails to establish an abuse of discretion by the trial court. (People v. Ochoa (1998) 19 Cal.4th 353, 473.) While we presume the affidavit supporting a warrant is valid, a defendant may challenge a search warrant by showing that the affiant deliberately or recklessly omitted material facts that negate probable cause when added to the affidavit. (People v. Sandoval (2015) 62 Cal.4th 394, 409 (Sandoval); People v. Scott (2011) 52 Cal.4th 452, 484 (Scott).) The defendant bears the burden of showing that omissions were material to the determination of probable cause and that there was an intentional or reckless omission of information, which when added to the affidavit renders the affidavit insufficient to support a finding of probable cause. (People v. Eubanks (2011) 53 Cal.4th 110, 136 (Eubanks); Scott, supra, 52 Cal.4th at p. 484.)
Deputy Klassen signed the affidavits supporting the search warrants for the residences at 640B Bobcat Lane and 314 Chukar Lane. The affidavits are identical. Deputy Klassen averred that he investigated a marijuana grow site on Jaguar Lane on July 18, 2012. Deputy Klassen went to that grow site but took no enforcement action and closed the case.
Defendant argues on appeal that Deputy Klassen omitted facts which would have shown the Jaguar Lane grow site complied with Modoc County Ordinance No. 349-B. But the ordinance was not in effect on July 18, 2012, when Deputy Klassen says he visited the grow site. Therefore, what Modoc County Ordinance No. 349-B permitted is irrelevant to the July 18, 2012 investigation. An affiant need disclose only relevant facts. (Sandoval, supra, 62 Cal.4th at p. 410.)
In any event, there is no substantial probability that including the omitted facts would have altered a reasonable magistrate's probable cause determination. Deputy Klassen told the magistrate there was a "marijuana growing operation" at the Jaguar Lane property but Deputy Klassen took no enforcement action. Defendant has not explained how adding the omitted facts—i.e., there were 23 live marijuana plants and four doctor's recommendations—would have changed the magistrate's probable cause determination. (Eubanks, supra, 53 Cal.4th at p. 136 [trial court properly denied motion to quash warrants and suppress evidence where omitted facts would not have affected the issuance of the warrants].) Facts are material and must be disclosed only if their omission would make the affidavit substantially misleading, i.e., if, because of their inherent probative force, there is a substantial possibility the omitted facts would have altered a reasonable magistrate's probable cause determination. (Sandoval, supra, 62 Cal.4th at p. 410.)
Defendant next asserts Deputy Klassen's affidavits omitted the fact that Deputy Klassen did not observe any violation of Modoc County Ordinance No. 349-B when he saw 24 marijuana plants at 640B Bobcat Lane during an overflight. Deputy Klassen testified at trial that he did not see any violations at Bobcat Lane from the air but he did not have a second doctor's recommendation. We conclude that omitting the fact that no violation of Modoc County Ordinance No. 349-B was apparent to Deputy Klassen during the overflight did not render his affidavits substantially misleading.
That Deputy Klassen could not determine from an aerial inspection whether a marijuana grow violated the county ordinance does not preclude a finding of probable cause for a search of 640B Bobcat Lane where the totality of the circumstances described in the affidavits supports a finding that there was a fair probability that evidence of a crime will be found at the locations searched. In issuing a search warrant, " ' "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." [Citation.]' " (Scott, supra, 52 Cal.4th at p. 483.) We consider the totality of the circumstances in determining whether a warrant affidavit establishes good cause for a search. (Eubanks, supra, 53 Cal.4th at p. 136.)
The affidavits here showed that defendant admitted growing the marijuana found at Jaguar Lane for sale and said he distributed his marijuana to areas outside Modoc County. Defendant admitted also owning the additional marijuana plants at 314 Chukar Lane and 645 Wood Duck Lane. The affidavits further connected defendant to 640B Bobcat Lane, where 24 more marijuana plants were growing. Also, on October 16, 2013, defendant smelled like fresh marijuana and was found in possession of a marijuana bud trimmer. Defendant said he got one pound of marijuana per day using the trimmer and it was costing him $3,200 a day to be without the trimmer. Also, he had $1,140 in cash even though he previously claimed he only got $800 a month in Social Security income of which $400 was taken for child support payments. The facts described in the unsealed portion of Deputy Klassen's affidavits established good cause to search the properties for evidence of unlawful cultivation and possession of marijuana.
Defendant also asserts Deputy Klassen should have disclosed in his affidavits that defendant offered to give away the marijuana plants he brought to a Modoc County Board of Supervisors meeting to prove it was legal to do so. Deputy Klassen testified at trial that defendant wanted to give marijuana plants away at a Modoc County Board of Supervisors meeting to prove that he could. That testimony is not materially different from the statements in Deputy Klassen's affidavits that defendant brought marijuana plants to a Modoc County Board of Supervisors meeting, said he wanted to give the plants away, and said he would sell Deputy Klassen marijuana to prove it was legal to do so.
Defendant further claims the probable cause affidavits omitted the fact that Deputy Klassen tried unsuccessfully to get defendant to sell marijuana to an informant. Deputy Klassen's trial testimony does not support defendant's assertion of an omitted fact. Deputy Klassen testified at trial that he did not try to get defendant to sell marijuana to a confidential informant. Deputy Klassen said to his knowledge none of his informants made contact with defendant to attempt to buy marijuana from defendant.
Defendant also faults Deputy Klassen for not disclosing in his affidavits that defendant went to the sheriff and the district attorney many times to discuss how to legally cultivate marijuana in compliance with Modoc County and state laws. In support of this contention, defendant cites the trial testimony of Sheriff Mike Poindexter and Sophia Meyer. Neither Sheriff Poindexter nor Meyer testified, however, whether Deputy Klassen was aware of the substance of conversations between Sheriff Poindexter and defendant or Brooke and defendant. Defendant cannot establish that Deputy Klassen omitted a fact in his affidavits when he does not point to any portion of the record showing Deputy Klassen knew of the alleged omitted fact when he signed the affidavits. (Sandoval, supra, 62 Cal.4th at p. 411.)
Defendant further claims Deputy Klassen wrongfully omitted from his affidavits the fact that defendant publicly opposed the county medical marijuana ordinance, filed a lawsuit to enjoin enforcement of the ordinance and openly defied the ordinance. Deputy Klassen's affidavits informed the magistrate that Deputy Klassen believed defendant was engaging in unlawful activity. The portions of the record defendant cites in his appellate opening brief do not show that at the time he signed the affidavits, Deputy Klassen was aware defendant publicly opposed Modoc County's marijuana ordinance or had filed a lawsuit to enjoin enforcement of the ordinance. (See also Cal. Rules of Court, rule 8.204(a)(1)(C) [appellate brief must support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [counsel must refer the reviewing court to the portion of the record which supports the appellant's contentions].) There is, thus, no basis to conclude that Deputy Klassen omitted those facts. Nonetheless, as we have explained, the unsealed portion of Deputy Klassen's affidavits showed good cause for the searches. Adding the facts that defendant publicly opposed Modoc County's marijuana ordinance and filed a lawsuit to enjoin enforcement of the ordinance does not negate the finding of probable cause.
Defendant next contends Deputy Klassen's affidavits should have disclosed that Deputy Klassen told defendant to take his operation to another county, Deputy Klassen told defendant what he was doing was going to cause him heartache in Modoc County, Deputy Klassen asked defendant, "Why are you trying to change things here?" and Deputy Klassen offered defendant cash if he agreed to cultivate 23 plants and pack up and leave Modoc County at the end of the growing season. Defendant is correct that the probable cause affidavits did not disclose that Deputy Klassen made statements like those defendant describes. Nevertheless, adding the omitted statements to the affidavits does not negate a finding of probable cause.
The magistrate need only determine that there was a fair probability that contraband or evidence of a crime will be found at a location. (Scott, supra, 52 Cal.4th at p. 483.) Probable cause deals with probability; proof beyond a reasonable doubt or by a preponderance of the evidence is not required. (Illinois v. Gates (1983) 462 U.S. 213, 235 [76 L.Ed.2d 527, 546].) Even with the omitted facts, the affidavits stated facts from which the magistrate could reasonably find a fair probability that evidence of a crime would be found at 314 Chukar Lane and 640B Bobcat Lane.
Defendant next argues Deputy Klassen should have disclosed in his probable cause affidavits that Cramton had two medical marijuana recommendations for the 24 plants found at 645 Wood Duck Lane. Deputy Klassen stated in his affidavits that he contacted Cramton at a marijuana grow site at 645 Wood Duck Lane, Cramton told Deputy Klassen 12 of the 24 marijuana plants found there belonged to defendant, and Cramton provided Deputy Klassen a doctor's recommendation for defendant. Deputy Klassen's affidavits thus informed the magistrate that defendant had a doctor's recommendation for marijuana and 12 of the marijuana plants at the Wood Duck property belonged to defendant. The omitted facts—i.e., that the other 12 marijuana plants belonged to Cramton who also had a doctor's recommendation—are not material because they relate to plants owned by Cramton, not defendant. Additionally, the omitted facts would not have changed a reasonable magistrate's probable cause determination because the fact that defendant and Cramton had doctor's recommendations would not negate Deputy Klassen's reasonable belief that defendant did not possess or cultivate marijuana for personal medical purposes. (People v. Mower (2002) 28 Cal.4th 457, 469; People v. Strasburg (2007) 148 Cal.App.4th 1052, 1058 ["the status of qualified patient does not confer an immunity from arrest. Law enforcement officers may arrest a qualified patient for marijuana offenses where they have probable cause, based on all of the surrounding facts including qualified patient status, when they have reason to believe, for instance, that the arrestee does not possess marijuana for his personal medical purposes"].)
Omitting Deputy Klassen's admission that he did not have evidence connecting the $1,140 to illegal activity also does not negate the magistrate's probable cause finding. Given defendant's report of a limited monthly income, defendant's possession of a relatively large sum of cash was suspicious when considered in light of Deputy Klassen's observations of marijuana at properties linked to defendant and defendant's statement about selling marijuana. Possession of the cash together with the other facts presented in the unsealed portions of Deputy Klassen's affidavits provided substantial basis for the magistrate's probable cause determination.
Defendant next contends Deputy Klassen should have disclosed that he had evidence defendant was collectively growing marijuana with six or seven other people. Deputy Klassen testified on cross-examination that he had some evidence that defendant grew marijuana with maybe six or seven people. Deputy Klassen did not say when he obtained such evidence. Defendant fails to demonstrate that Deputy Klassen omitted a fact because he has not shown Deputy Klassen knew the fact defendant claims was omitted at the time Deputy Klassen signed his affidavits. (Sandoval, supra, 62 Cal.4th at p. 411.)
Moreover, the fact that defendant was growing marijuana with others, by itself, does not establish a defense under Health and Safety Code section 11362.775. That statute provides a defense against a charge of possession of marijuana for sale to qualified 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. (People v. Anderson (2015) 232 Cal.App.4th 1259, 1274.) Health and Safety Code section 11362.775 permits cultivation in amounts necessary to meet the reasonable medical needs of the qualified patients and cardholders. (People v. London (2014) 228 Cal.App.4th 544, 554.) While cooperatives or collectives may receive reimbursement for marijuana and services provided in conjunction with the provision of marijuana (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785), Health and Safety Code section 11362.775 does not permit cooperatives or collectives to make a profit from the cultivation or distribution of medical marijuana. (People v. Anderson, supra, 232 Cal.App.4th at p. 1282; People v. Baniani (2014) 229 Cal.App.4th 45, 61; People v. London, supra, 228 Cal.App.4th at p. 553; People v. Jackson (2012) 210 Cal.App.4th 525, 538-539; see also People v. Hochanadel (2009) 176 Cal.App.4th 997, 1009-1011 [describing best practices for medical marijuana collectives or cooperatives as set forth in Attorney General guidelines].) Defendant does not claim Deputy Klassen knew the marijuana growing at Jaguar, Wood Duck, Chukar, and Bobcat Lanes were for qualified patients or persons with valid identification cards or the designated primary caregivers of qualified patients or persons with valid identification cards, to be used for medicinal purposes only, and grown by a nonprofit enterprise. Rather, Deputy Klassen suspected defendant was growing marijuana illegally. And the existence of facts which may support a defense does not preclude a probable cause finding. (People v. Fisher (2002) 96 Cal.App.4th 1147, 1150-1152 (Fisher); People v. Strasburg, supra, 148 Cal.App.4th at pp. 1058-1060.)
Defendant's contention that Deputy Klassen should have disclosed that defendant's behavior was consistent with the belief that he was acting in accordance with the Compassionate Use Act fails for the same reasons. An affidavit need not include facts establishing that marijuana was not possessed or cultivated for medical use to establish probable cause to search. (People v. Clark (2014) 230 Cal.App.4th 490, 493, 499.) And the presentation of a doctor's recommendation does not nullify probable cause to search. (Fisher, supra, 96 Cal.App.4th at p. 1149.) This is because the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) and the Medical Marijuana Program Act (id. at § 11362.7 et seq.) provide limited protection from arrest and/or prosecution. (Id. at §§ 11362.5, subd. (d), 11362.71, subd. (e), 11362.765, 11362.77, 11362.775.) Under the Compassionate Use Act, the police may arrest a person upon probable cause to believe that possession or cultivation has occurred regardless of the arrestee's having a doctor's recommendation. (People v. Kelly (2010) 47 Cal.4th 1003, 1013; People v. Mower, supra, 28 Cal.4th at pp. 467-469 [rejecting contention that the Compassionate Use Act grants immunity from arrest and would require reversal of a conviction for possession or cultivation of marijuana whenever law enforcement officers fail to adequately investigate the defendant's status as a qualified patient or primary caregiver prior to arrest]; People v. Clark, supra, 230 Cal.App.4th at p. 499; Fisher, supra, 96 Cal.App.4th at pp. 1151-1152.) The Medical Marijuana Program Act does not protect a person from arrest for possession or cultivation of medical marijuana in an amount in excess of the limits set forth in that statute. (Health & Saf. Code, §§ 11362.71, 11362.77.) Notwithstanding whether defendant had a defense under the Compassionate Use Act or the Medical Marijuana Program Act, Deputy Klassen's affidavits set forth facts upon which the magistrate could reasonably find that probable cause existed to believe that defendant was illegally selling, possessing, possessing for sale, or cultivating marijuana and that evidence of such criminal activity may be found at the locations identified in the search warrants.
In sum, defendant fails to establish that asserted facts were omitted, omitted facts were material, or that adding the omitted facts to Deputy Klassen's affidavits undermined the showing of probable cause to issue the search warrants for 640B Bobcat Lane and 314 Chukar Lane. In light of our conclusion, there is no need to address whether the good faith exception to the Fourth Amendment exclusionary rule is applicable.
V
Defendant claims reversal is required because charges were brought against him in retaliation for the exercise of his constitutional rights.
A claim of vindictive prosecution should be raised through a pretrial motion to dismiss. (People v. Edwards (1991) 54 Cal.3d 787, 827.) Defendant asks us to deem one of his in limine motions a motion to dismiss. But that motion did not request a dismissal. Instead, in arguing the motion defendant asked the trial court to allow him to present evidence of his claim of vindictiveness and retaliation to the jury. Defendant said the jury should know he was arrested in order to quell opposition to the local ordinance written by Deputy Klassen and the jury should "know the complete circumstances." When the trial judge ruled that the jury will decide the issue based on the evidence, defendant responded, "That seems reasonable" and agreed with the ruling.
Defendant claims he reiterated his claim of vindictive prosecution in his motion for new trial. Having carefully reviewed the transcript of defendant's oral motion for a new trial, we disagree. Defendant's claim is not properly before us. (People v. Maury (2003) 30 Cal.4th 342, 439; People v. Edwards, supra, 54 Cal.3d at p. 827.)
VI
Defendant further argues that Deputy Klassen engaged in outrageous conduct requiring reversal of the convictions. Defendant asserts that Deputy Klassen set up his own legal standard for enforcing Modoc County Ordinance No. 349-B, threatened defendant with prosecution if defendant did not leave the county, omitted material facts from the search warrant affidavits that negated probable cause to search, and did not comply with the knock-notice requirements of section 1531. We have rejected defendant's contention that Deputy Klassen omitted material facts from his probable cause affidavit and will not repeat our discussion of that claim in this section.
Although we do not condone some of Deputy Klassen's apparent or alleged tactics, because defendant did not seek dismissal based on outrageous government conduct, his appellate claim is forfeited. (People v. Low (2010) 49 Cal.4th 372, 393, fn. 11.) It also fails on the merits.
The United States and California Supreme Courts have left open the possibility of recognizing a due process violation requiring dismissal of a criminal action based on outrageous conduct by law enforcement officials. (People v. Smith (2003) 31 Cal.4th 1207, 1223-1225; People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1.) The possibility of a due process claim is based on dicta in United States v. Russell (1973) 411 U.S. 423, 431-432 [36 L.Ed.2d 366, 373] where the United States Supreme Court said it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction" but the conduct in Russell (undercover agent investigating an illegal drug manufacturing operation provided an essential ingredient in the manufacture of methamphetamine to an existing enterprise) stopped "short of violating that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment."
In her concurrence, Justice Werdegar observed the due process claim is a bar to prosecution rather than a defense to the charge. (People v. Smith, supra, 31 Cal.4th at p. 1228 (conc. opn. of Werdegar, J.).)
Although the California Supreme Court has not held a prosecution barred because of outrageous government conduct, our Courts of Appeal have recognized such a possibility. (People v. Holloway (1996) 47 Cal.App.4th 1757, 1765, disapproved of on another ground in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11; Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1259-1260.) Cases have acknowledged that dismissal is warranted when the government engaged in outrageous misconduct violating a fundamental right of the defendant and preventing the defendant from receiving a fair trial. (People v. Uribe (2011) 199 Cal.App.4th 836, 841, 866-869 (Uribe); see also United States v. Morrison (1981) 449 U.S. 361, 365-367 [66 L.Ed.2d 564, 569] [dismissal is inappropriate absent demonstrable prejudice or substantial threat thereof]; Hampton v. United States (1976) 425 U.S. 484, 490 [48 L.Ed.2d 113, 119] ["The limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant."].) But most cases have found no outrageous government conduct was established. (See, e.g., People v. Ervin (2000) 22 Cal.4th 48, 85-86; Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 570; Uribe, supra, 199 Cal.App.4th at pp. 866-869; People v. Holloway, supra, 47 Cal.App.4th at pp. 1767-1768.)
Our Courts of Appeal have considered the following factors from People v. Isaacson (1978) 44 N.Y.2d 511 [406 N.Y.S.2d 714, 378 N.E.2d 78] in determining whether due process principles have been violated in cases involving alleged outrageous government conduct: " '(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity; (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice; (3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.' [Citation.]" (People v. Guillen (2014) 227 Cal.App.4th 934, 1006, 1010-1012 (Guillen); People v. Wesley (1990) 224 Cal.App.3d 1130, 1142-1145; People v. Towery (1985) 174 Cal.App.3d 1114, 1136-1137; People v. Peppars (1983) 140 Cal.App.3d 677, 686-687.) Those factors are only illustrative and " 'should be viewed in combination with all pertinent aspects and in the context of proper law enforcement objectives—the prevention of crime and the apprehension of violators, rather than the encouragement of and participation in sheer lawlessness.' " (People v. Wesley, supra, 224 Cal.App.3d at p. 1144.)
The Ninth Circuit Court of Appeals, which has recognized a due process claim based on outrageous government conduct, imposes a high bar on defendants alleging outrageous government conduct. (Guillen, supra, 227 Cal.App.4th at p. 1004.) " 'For a due process dismissal, the [g]overnment's conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice. [Citations.] The [g]overnment's involvement must be malum in se or amount to the engineering and direction of the criminal enterprise from start to finish. [Citation.] The police conduct must be "repugnant to the American system of justice." [Citation.]' " (Guillen, supra, 227 Cal.App.4th at p. 1004.)
California appellate court cases that have found outrageous government conduct which barred prosecution involved situations where the government interfered with the defendant's right to counsel. (People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 445-449; Morrow v. Superior Court, supra, 30 Cal.App.4th at pp. 1259-1261; Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429-430.) No such violation has been shown here.
Defendant complains Deputy Klassen enforced his own personal interpretation of the county ordinance, told defendant to grow marijuana in another county where he would not experience "heartache," and threatened to arrest defendant if he did not leave Modoc County. But " '[i]t is the appellant's responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant's behalf.' " (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 25.) Defendant does not show that the challenged conduct denied him a fair trial. Defendant questioned Deputy Klassen extensively about his understanding of the county ordinance and his statements encouraging defendant to move his marijuana operation out of Modoc County. Defendant made clear he disagreed with Deputy Klassen's interpretation of the ordinance. And Deputy Klassen admitted he was incorrect when he earlier testified that Modoc County Ordinance No. 349-B required the patient for whom marijuana was being grown to live at the grow site. Defendant does not challenge the sufficiency of the evidence supporting his convictions. In the end, defendant failed to substantiate his claim that Deputy Klassen acted for retaliatory or improper purposes. Deputy Klassen's activity, while not always a model for law enforcement, does not present the type of outrageous conduct barring prosecution. (Guillen, supra, 227 Cal.App.4th at pp. 1009-1010; Uribe, supra, 199 Cal.App.4th at pp. 841, 866-869; see also Hampton v. United States, supra, 425 U.S. at p. 490.)
Application of the Isaacson factors also does not support a reversal. Even if Deputy Klassen's understanding of Modoc County Ordinance No. 349-B was mistaken, nothing shows that Deputy Klassen manufactured a crime which otherwise would not likely have occurred or that Deputy Klassen's conduct caused defendant to commit a crime or encouraged or facilitated defendant's criminal activity. Defendant was already growing marijuana at multiple sites when Deputy Klassen began his formal investigation. Deputy Klassen investigated defendant because defendant's conduct indicated his marijuana operation was for profit, even if some of the marijuana he grew was for his personal medical needs.
With regard to knock notice, Deputy Klassen mistakenly believed he had a no-knock notice warrant. A knock-notice challenge requires an examination of the surrounding circumstances. (See, e.g., People v. De Santiago (1969) 71 Cal.2d 18, 29; People v. Hoag (2000) 83 Cal.App.4th 1198, 1211 ["the essential Fourth Amendment inquiry is whether, under the totality of the circumstances, the policies underlying the knock-notice requirement have nevertheless been served"].) But defendant did not raise a knock-notice challenge in the trial court. His challenge is, therefore, forfeited. (People v. Mays (1998) 67 Cal.App.4th 969, 973-974; People v. Watkins (1994) 26 Cal.App.4th 19, 32.) Further, defendant does not cite any authority for the proposition that failure to comply with the knock-notice requirement by itself is sufficient to constitute outrageous government conduct requiring a reversal. We have found no such authority.
Defendant fails to show that reversal is required because the challenged conduct by Deputy Klassen is so grossly shocking or outrageous as to violate a universal sense of justice.
VII
Because we have rejected each of defendant's appellate claims, we likewise reject his claim that cumulative error requires reversal.
DISPOSITION
The judgment is affirmed.
MAURO, Acting P. J. We concur: RENNER, J. NICHOLSON, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.