Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA063569 Harvey Giss, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Attorney General, Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
Mark Allen Thomas appeals from his conviction of one count of possession of marijuana for sale, following a court trial on the basis of the transcript of the preliminary hearing. Thomas argues that the trial court denied him due process when it refused to consider his defense that he cultivated marijuana as part of a collective, under the Medical Marijuana Program Act (MMPA), Health and Safety Code section 11362.775. We reverse.
Unless otherwise indicated, all subsequent statutory references are to the Health and Safety Code.
FACTS
An information filed October 20, 2009 charged Thomas with one felony count of possession of marijuana for sale, in violation of section 11359 (count 1), and one felony count of theft of utility services in excess of $400, in violation of Penal Code section 498, subdivision (b) (count 2). After the trial court denied his motions to dismiss (Pen. Code, § 1385) and to set aside the information (Pen. Code, § 995), Thomas pleaded no contest to Count 2 (theft of services) in exchange for a 16-month sentence on the theft count and a stipulated restitution amount of $30,782.10. Thomas submitted to a court trial on count 1, possession of marijuana for sale, on the basis of the transcript of the preliminary hearing.
Penal Code section 498 was amended effective January 25, 2010 to increase the threshold amount required for a violation of the section to be punishable as a felony from $400 to $950. (Stats. 2009–2010, 3d Ex. Sess., ch. 28, § 24.)
Preliminary hearing transcript
At the preliminary hearing on October 13, 2009 before Judge Charles L. Peven, a utility theft investigator for the Department of Water and Power testified that on January 6, 2009, during an inspection of the electrical service and meter at 17175 San Jose Street in Granada Hills, he discovered a bypass diverting electricity from registering on the meter and notified the Los Angeles Police Department (LAPD). A search warrant was served the same day. Thomas was the person billed for the utilities at that address.
LAPD Detective Joe Danny Garcia testified that when he arrived at the address that day, Thomas provided him with a key for the residence. Inside, Detective Garcia saw “a fully operational marijuana grow that was complete with overhead lighting equipment, an irrigation system, and an air conditioning system.” In the garage, there were 165 flowering marijuana plants from two to three feet tall. In one of the bedrooms, there were nine marijuana plants two to three feet tall, six marijuana plants one to two feet tall, and 135 “‘cloned’” or very small infant marijuana plants with roots. The plants were female plants capable of producing buds. There was a scale in the house, and mail addressed to Thomas. Thomas had $1,120 in his possession. A surveillance camera outside pointed toward the driveway and street area.
Altogether, the marijuana weighed 60 pounds, although the usable portion of the marijuana was not weighed separately. Officer Garcia’s expert opinion, based on the amount of marijuana, the currency, and the scale, was that Thomas possessed the marijuana for the purpose of sale. On cross-examination, Officer Garcia acknowledged that the laws allowed cultivation for a collective, and knew from training that a collective was required to have a business license. The quantity of marijuana found could have been produced for a nonprofit sale to a collective, which would require measurement with a scale.
Jeffrey Hunter, the president of a nonprofit medical marijuana collective in Van Nuys with about 2, 000 members, testified in Thomas’s defense. To become a member of the collective, an individual had to present a physician’s statement to Hunter’s secretary, who would verify the statement, usually online or by calling the doctor. After presenting a valid California identification and signing a two-page membership agreement, the individual would be entered into a database and admitted as a member. To stay current, most members came in to buy marijuana, but others provided help to the collective, such as decorating, baking, bringing food, or doing research. The cooperative paid Hunter his expenses such as car payments, rent, clothes and food, paid compensation to three or four other employee members, and had a sales permit and a tax registration.
The collective agreement gave Hunter the authority to pick a grower. An agreement reached in May 2008 between Hunter and Thomas authorized Thomas to grow marijuana for the collective. Before May 2008, the collective had “the agreement as him being one of our members.” The May 2008 agreement provided that Thomas would provide marijuana for the collective at a reasonable price and in a “significant amount.” There were four to five other growers. The collective provided Thomas with “a couple hundred” patient medical-marijuana recommendations “to put up at his house to be able to grow for.” Hunter did not give Thomas any money up front or cash at any time. Hunter never actually got any marijuana from Thomas.
Hunter knew Thomas before May 2008 because “he was a member of the organization.” Other growers were not members, and “anybody can grow. It’s just very new to where, you know, there’s no set thing to who your grower can be.” Thomas had also volunteered to help remodel and had done consulting for the cooperative.
William Britt, executive director of an association of patient advocates, was called as a cannabis expert. He had examined the marijuana seized at the Granada Hills address and concluded about a pound and a half was usable bud material. A collective was a group of patients who gathered together to cooperatively cultivate cannabis, under section 11362.775, which allowed patients to collectively cultivate marijuana. The photographs of Thomas’s grow were consistent with a normal collective grow, and the circumstances of the case were consistent with collective medical use. Depending on the county and the patient’s physician letter, each patient was entitled to a certain number of plants. Britt could not think of anything more Thomas could have done to make himself legitimate as a grower.
There were no formal guidelines for collectives in the City of Los Angeles, but the Attorney General had put out a list of “suggestions and recommendations” for collectives. Britt thought that the collective had followed the Attorney General’s guidelines by operating as a nonprofit, obtaining business and tax licenses and seller’s permits, requiring membership application and verification, and promoting interaction between the caregivers, growers, and members. The low price range also supported the conclusion that it was a legitimate cooperative. Thomas told Britt that this was his first grow, and that he had signed a collective agreement and joined the collective before he got the authorization to grow for the collective. Thomas showed Britt the one-paragraph agreement to grow for the collective. Thomas told Britt that he wanted to be reimbursed for his costs and be part of the collective. Britt estimated the setup cost of the grow at about $10,000, and the amount of marijuana bud it could yield in one four-month grow at eight pounds. Thomas’s crop was about six weeks into its first grow cycle.
Britt was a patient and a member of a collective who had participated in collective indoor grows. He defined a collective as “patients who associate in order to collectively or cooperatively cultivate marijuana, ” although California law did not define “collective, ” and the Attorney General’s letter only suggested guidelines. On the street, the marijuana would sell for $5,000 or more a pound, and a collective would buy it for about $2,500. Eight pounds would supply 16 patients for a month, or three people for a year, depending on the level of usage. Thomas’s was a small-to-medium collective grow. The electric bypass was illegal, and Britt had not advised any collectives to use a bypass.
Both sides rested. The defense argued that there was insufficient evidence of possession for sale. Although the guidelines were sketchy, “all’s you can do, really, is the best you can” to comply with the law. The pound and a half of bud material was a personal use amount. There was nothing to show that the marijuana was possessed for sale on the street. The scale was to weigh it before sale to the collective.
The prosecution argued that Detective Garcia testified that the marijuana was possessed for sale. Thomas had advanced an affirmative defense under the MMPA. Nevertheless, Thomas had not produced any evidence that he was a patient or caregiver under section 11362.5, subdivision (d). Whether a cooperative was permissible was in dispute, and the guidelines were not the law. People v. Galambos (2002) 104 Cal.App.4th 1147, had held that growing marijuana to provide to a cooperative was not protected under California law.
The defense responded that three witnesses had testified that Thomas was a member of the collective, and the case law was unsettled. The only issue was what was legal on the date of Thomas’s arrest.
The court stated: “That’s the problem in all these kinds of cases. And I assume the court’s going to be seeing a lot more of these types of cases now.” The entire issue was whether Thomas unlawfully possessed marijuana for sale. “Unfortunately, you know, we get laws in this state by initiative, and this came down by an initiative. These things are poorly written; they’re poorly drafted. And we end up with guidelines from different people. Guidelines for this and guidelines for that. It’s very unclear. Nobody really knows where we are.” Thomas was growing marijuana in a house, “[a]nd the worst thing about it, if he’s so involved with the—with the collective and, you know, not in there just to make money, but if he’s so involved in the collective, he wants to supply this stuff to the collective and just get his expenses back, his remuneration back, what is he doing with a bypass on the electricity? What is he doing with that? It doesn’t make any sense. Just let him pay for the electricity. He’ll get that money back if he’s just giving it to the collective and selling it to the collective.”
January 19, 2010 hearing
At a hearing on January 19, 2010, Judge Harvey Giss denied Thomas’s motions to dismiss and to set aside the information, stating: “[M]y notes indicate[d] that the defendant is not a patient. The defendant is not a primary caregiver. I didn’t see anything to establish that. [¶]... [¶] Cultivating is a legal factual issue for a jury to decide....” The court also stated: “He has a grow house allegedly. He can’t cultivate or grow it or exchange it. It has to be a collective or cooperative. [¶]... [¶] [M]y notes indicate he wasn’t a registered collective or cooperative in the state of California.” Defense counsel argued that there was evidence that Thomas was a grower registered with a collective, a member “appointed by the collective to grow.” The court responded that the magistrate found against Thomas at the preliminary hearing, so the question was for the trier of fact: “I can’t independently rule, based upon that, that that’s what he was doing. That’s what he testified to, but the prosecution is entitled to put on a case and cross-examine and have a jury decide whether the whole thing is a ruse or whether it’s a legitimate situation. It’s really that simple. The whole area is confusing, but that’s what the issue is.”
March 5, 2010 hearing
After Thomas pleaded no contest to count 2 (theft of utility services) and submitted to a court trial on count 1 (possession of marijuana for sale) on the basis of the preliminary hearing transcript, the court held a hearing on March 5, 2010. The court stated: “I read the entire transcript of the preliminary hearing. There is no problem connecting the defendant to the location in issue and the marijuana grow operation. The only issue is whether or not [under] compassionate use laws and the marijuana laws the defendant is entitled to raise—is entitled to use that as a complete defense to count 1. [¶] Tentatively I’m ruling it’s not a defense and I’m relying upon the case of People [v.] Galambos[, supra, 104 Cal.App.4th 1147]. And that case stands for the proposition that [one] really can’t grow it and sell it. Got to grow it for your own use. [¶] I understand all, all of the inconsistencies; you know, if you have a cooperative or—what’s the other one. Starts with a “c”—collective. [¶]... [¶].. And you need all the requirements. It seems preposterous that people, especially for old folks [to] have to have a plot of land, grow it themselves, have someone stand over with a shotgun to protect it, rather than pay the money to have someone grow it for them or buy it outright. The cases are driving everybody insane. I’m just saying that. I’m going to follow Galambos and find it, your client... guilty. But the genius of what you’ve done, you have preserved the right to appeal....” Defense counsel argued that although the attorney general’s opinion was the only guideline beside “sporadic case law, ” he had put into evidence the collective and how Thomas “did it by the book.” The court answered that it had read all the cases and could not figure out, if there is a right to use it for medicinal purposes, “you have a right to get it somewhere. Where do you get it from? Where do even the outlets get it from? [¶] I don’t know. It’s like a big mystery. Someone is growing it. They are buying it. But I’m not going to go any further. I’m just saying I’m going to follow the Galambos case and you can appeal it. I hope somebody makes some definitive statements as to how far the law goes in protecting people that are growing it, and selling it, and so forth.” Defense counsel argued that the court could use the Attorney General guidelines “because there is no other law.”
The court found Thomas guilty of count 1 “based on the transcript of the preliminary hearing and my reading of the Galambos decision that I’ve already cited, this complicated area.”
Thomas filed this timely appeal.
DISCUSSION
Thomas argues that he was denied due process when the trial court failed to consider his “collective, cooperative defense under section 11362.775” of the MMPA, because of a lack of “case authority on the subject, and, instead, based its finding of guilt” on Thomas’s failure to meet the requirements of the Compassionate Use Act (CUA), section 11362.5, subdivision (d).
In People v. Galambos, supra, 104 Cal.App.4th at p. 1160, the Third Appellate District acknowledged that Proposition 215, the CUA, provided a limited immunity from prosecution for the cultivation of marijuana for a patient or a patient’s primary caregiver, who “possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d).) The statute did not, however, immunize the defendant, who did not qualify as a patient or primary caregiver, and who was convicted of marijuana cultivation after he furnished marijuana to a marijuana buyers’ cooperative. (Galambos, at pp. 1153, 1167.) The court rejected the defendant’s argument that the CUA “can be construed to imply an exception for furnishing marijuana to a marijuana buyers’ cooperative.” (Id. at p. 1167.) The statute did not “impliedly authorize[] trafficking in marijuana for medical use.” (Id. at p. 1168.) “As a court, we must respect the compromises and choices made in the legislative and initiative process, not substitute our judgment of what would constitute a more effective measure.” (Ibid; see People v. Mentch (2008) 45 Cal.4th 274, 285, 286, fn. 7 [grower and supplier not “primary caregiver” under CUA].) The CUA also “does not allow for collective cultivation and distribution of marijuana by someone who is a qualified patient for the benefit of other qualified patients or primary caregivers, ” and did not alter the statutory prohibition on possession of marijuana for sale. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 769, 773.)
Thomas concedes that the CUA did not provide him with a defense that he was cultivating the marijuana on behalf of a collective or cooperative. He raised, instead, a defense under the MMPA, effective January 1, 2004, which added sections 11362.5 through 11362.83 to the Health and Safety Code and was intended to “‘[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects’” and “‘ address additional issues that were not included’” in the CUA. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1007–1008; People v. Urziceanu, supra, 132 Cal.App.4th at p. 783.)
The MMPA “afford[s] immunity from criminal liability for various crimes.” (People v. Kelly (2010) 47 Cal.4th 1008, 1015, fn. 5.) Section 11362.775 of the MMPA provides: “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, shall not solely on the basis of that fact be subject to state criminal sanctions under section... 11359.” “This new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers.... Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana....” (People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.) A “[q]ualified patient” under the MMPA is “a person who is entitled to the protections of Section 11362.5 [of the CUA], but who does not have an identification card issued pursuant to this article.” (§ 11362.7, subd. (f).) Section 11362.5, subdivision (b)(1)(A) provides a right to obtain and use marijuana for medical purposes to “seriously ill Californians... where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” The MMPA also provides that collectives, cooperatives, or other groups may not profit from the sale of marijuana. (§ 11362.765, subd. (a); People v. Hochanadel, supra, 176 Cal.App.4th at p. 1009.)
Thomas argues that he presented evidence that he was a member of Hunter’s collective, and that when the collective authorized him to cultivate marijuana for the collective, Thomas associated with others to collectively or cooperatively cultivate marijuana for medical purposes, bringing him under the MMPA’s section 11362.775 and immunizing him from liability for possession of marijuana for sale in violation of section 11359. Thomas contends that the trial court’s comments show that it refused to consider his defense under the MMPA, and also refused to consider relevant evidence, thus denying him a meaningful opportunity to present a complete defense.
“Since there is no requirement for findings after a court trial in a criminal case, whether a conviction rests on alternative theories is ordinarily opaque.... [¶] Generally, on appeal, statements made by the trial court in the course of trial as to its reasoning are not reviewable. [Citations.] However, there are exceptions to this general rule. In criminal cases an appellate court may take into consideration the ‘“judge’s statements as a whole” [when they] disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in “secondary remarks” but in his basic ruling....’ [Citation.] That is the case here. [¶] The oral opinion of the trial court may be used in interpreting the court’s action in its decision of the case if it unambiguously discloses the mental processes of the trial judge in reaching his conclusion. [Citation.]” (People v. Butcher (1986) 185 Cal.App.3d 929, 936.) “Ordinarily statements made by the trial court as to its ruling are not reviewable. An exception to this general rule exists when the court’s comments unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law. (People v. Butcher[, supra, ] 185 Cal.App.3d [] [at pp.] 936–937.)” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1440.) To the extent that the trial court’s statements were ambiguous, “we are compelled to indulge in that interpretation that will result in upholding the action of the trial judge as long as that interpretation is reasonable.” (People v. Megladdery (1940) 40 Cal.App.2d 748, 774, overruled on other points in People v. Simon (2001) 25 Cal.4th 1082, 1093 and People v. Posey (2004) 32 Cal.4th 193, 205.)
After a review of the entire record and viewing the trial court’s March 5, 2010 statements as a whole (People v. Butcher, supra, 185 Cal.App.3d at p. 936), we conclude that the court’s remarks unambiguously show that it did not consider the defense under the MMPA. At the hearing on March 5, 2010, the trial court stated that it read the entire transcript of the preliminary hearing, and the issue was “whether or not [under] compassionate use laws and the marijuana laws the defendant is entitled... to use that as a complete defense to count 1.” The court indicated that tentatively, the CUA was not a defense, relying on People v. Galambos, supra, 104 Cal.App.4th 1147which “stands for the proposition that [one] really can’t grow it and sell it. Got to grow it for your own use.” The court then continued that it understood “all of the inconsistencies; you know, if you have a cooperative or... collective [¶]... [¶] [a]nd you need all the requirements.” Defense counsel argued that Thomas had brought in the Attorney General guidelines “which is really the only guideline we got” as to whether a collective “did it by the book, ” arguing that the evidence showed that Hunter’s collective complied with the guidelines. The court responded, “I understand.” The court then stated it was a “big mystery” where people with a right to use marijuana for medical purposes and the outlets were supposed to get marijuana, but “I’m not going to go any further” than applying People v. Galambos. The court added “I hope somebody makes some definitive statements as to how far the law goes in protecting people that are growing it, and selling it, and so forth.” Defense counsel concluded that all he could do was use the Attorney General opinion, “because there is no other law. So we did it by the book, and that’s all we can do.”
The MMPA, section 11362.81, subdivision (d) provides: “[T]he Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the [CUA].” [T]he California Attorney General issued ‘Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use’” on August 25, 2008 (A.G. Guidelines). People v. Hochanadel, supra, 176 Cal.App.4th at p. 1009.) We granted Thomas’s request for judicial notice of the Attorney General Guidelines. The Attorney General’s views are not binding, but they are entitled to considerable weight. (Id. at p. 1011.)
The court’s refusal to “go any further” than applying People v. Galambos, supra, 104 Cal.App.4th 1147, which addressed only the CUA, is reasonably construed as a failure to apply the MMPA and to consider the Attorney General guidelines, which defense counsel had introduced in an attempt to show that the collective was legal under the MMPA and that Thomas was legally growing marijuana, as a member of the collective, to furnish to other collective members. The trial court’s statement that it was “a big mystery” and its wish for “definitive statements” regarding how the law protects growers and sellers also indicates that it did not consider Thomas’s defense under the MMPA, which addressed additional issues not included in the CUA and, in section 11362.775, affords immunity from criminal prosecution under section 11359 to qualified patients, caregivers, and persons with identification cards who associate collectively to cultivate marijuana.
We do not consider the trial court’s remarks at the January 19, 2010 hearing on Thomas’s motion to set aside the information under Penal Code section 995, during which the court stated “my notes indicate that [Thomas] is not a patient... [or] primary caregiver [¶]... [¶]... [or] registered collective or cooperative.” Although Thomas had introduced evidence at the preliminary hearing that he was a collective member appointed by the collective to grow marijuana, the court concluded that it was for the trier of fact (“[t]he jury”) to decide whether Thomas had established that he was a patient or primary caregiver registered as a member of a collective. Thomas subsequently submitted to a court trial on count 1 on the basis of the preliminary hearing transcript, and at the March 5, 2010 hearing—at which the court, not a jury, was the finder of fact—the court did not make factual findings whether Thomas was a patient, a caregiver, or a member of the cooperative. We recognize that if the court had found pursuant to the March 5, 2010 hearing that Thomas did not fall into any of those categories, the court’s remarks would have a different meaning. That is not, however, the circumstance on this record.
The reasonable interpretation of the trial court’s statements at the March 5, 2010 hearing is that the court did not consider Thomas’s argument that section 11362.775 of the MMPA provided him with a defense to a charge of possession of marijuana for sale. “[I]t cannot be the law that a defendant may be convicted in circumstances where the conviction appears to be based upon a legally invalid theory of the law notwithstanding the presence of an alternative valid theory.” (People v. Butcher, supra, 185 Cal.App.3d at p. 937.) Thus, we have no occasion to address Thomas’s due process argument.
We reverse Thomas’s conviction of possession of marijuana for sale in violation of section 11359.
DISPOSITION
Thomas’s conviction on count 1 is reversed.
We concur: MALLANO, P. J., ROTHSCHILD, J.