Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tuolumne County, No. CRF24826, Eleanor Provost, Judge.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant/defendant Jeremy Tosto and codefendant Scott Kennedy were charged with the cultivation of marijuana, based upon their operation of an indoor garden, which consisted of 36 large and 409 germinating marijuana plants. Tosto and Kennedy relied on the affirmative defense that they were qualified patients lawfully using medical marijuana pursuant to the limited immunity provided by the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5). After a joint jury trial, Tosto and Kennedy were convicted as charged, and the court suspended imposition of their sentences and placed them on formal probation for five years pursuant to various terms and conditions, including service of five months in jail.
All further statutory citations are to the Health and Safety Code unless otherwise indicated.
In this appeal, Tosto argues the jury was not properly instructed on the burden of proof and quantity limitations applicable to the CUA’s affirmative defense, and the court improperly imposed fines and penalties without clarifying the statutory bases for its orders. We will remand the matter for the trial court to correct the imposition of fines and penalties, and otherwise affirm.
FACTS
At 7:30 p.m. on May 9, 2007, Corporal Kelly Dickson and Deputy Imlach of the Tuolumne County Sheriff’s Department arrived at a business known as Bell Plastics, so Imlach could speak to Kennedy as a part of a felony investigation. Tosto was outside and working on a Jeep parked next to the building.
It was stipulated that no charges were filed against Kennedy regarding the original reason for the investigation.
Imlach remained outside with Tosto, while Dickson entered the business through the unlocked front entrance doors and tried to find Kennedy. Dickson testified an “Open” sign was posted on the entrance doors, no one told him the business was closed, and there were no signs posted that stated the business hours. The entrance doors led to a large showroom that contained a cashier’s counter, a desk area, and plastic merchandise stacked on numerous shelves.
Dickson identified himself and walked inside the building. No one was present or responded to his calls. He repeatedly called for Kennedy as he continued along a walkway that led to a rear door. To the left of the rear door Dickson observed an open door, which exposed a room with an indoor garden of marijuana and tomato plants. Without seeing or hearing anyone inside the building, he retraced his steps to the front door.
Dickson walked outside and encountered Tosto, Kennedy and Kennedy’s mother, Deborah Kennedy. Dickson asked each of them about the marijuana plants inside, and all three replied that they did not know what he was talking about. Dickson repeated his question and asked about “[t]he tall green plants producing marijuana in your room, how could you not know about it? They’re inside your building.” Dickson asked the three individuals if it was their business. They replied affirmatively, but again said they did not know what he was talking about. When Dickson suggested they go inside to take a look because they did not know what he was talking about, the group declined. Dickson never threatened to get a search warrant.
Sergeant Johnson of the Tuolumne Narcotics Team responded to the business and spoke to Tosto and the Kennedys. Ms. Kennedy consented to his entry into the building to examine their paperwork and the marijuana plants.
Marijuana cultivation, cloned plants and usages
Detective Jarrod Pippin, the lead detective assigned to the Campaign Against Marijuana Planting (CAMP), arrived at Bell Plastics on the same evening that Dickson found the indoor marijuana garden. He described the facility as a large “industrial-type” building. Pippin believed he saw an “open” sign in the window. Pippin could not determine what type of business it was and disagreed with Dickson’s description of the interior as a “showroom.” Pippin testified the large main room “almost looked like a garage-sale type of thing. There was a ton of different things inside. Trinkets, tools, tables set up with stuff on top of the tables.”
Pippin testified the indoor garden contained tables and trays with marijuana and vegetable plants in various stages of growth. There were a total of 445 marijuana plants, consisting of 409 germinating cloned plants and 36 larger plants. All the plants were female; there were no male plants. It was determined that the 409 seized plants consisted of 99.3 net grams of marijuana.
Pippin testified there are three growth stages for marijuana: (1) the germination stage for the first two or three weeks; (2) the vegetative stage for 30 to 60 days, when the majority of growth occurs; and (3) the flowering stage for the final 30 days, which produces the buds with THC, the cannabinoid that causes a psychoactive reaction when the buds are smoked. The plants die after they have flowered and must be replaced by new plants.
Pippin testified that only female marijuana plants contain THC in their flowering buds. Male marijuana plants do not produce THC, but have pollen sacs that pollinate female plants to produce seeds. Once pollination occurs, female plants produce seeds instead of THC buds. Thus, a person who is growing marijuana for medical usage would remove male plants before pollination to ensure the female plants have buds with THC. The buds remain potent for three to six months.
Pippin testified that marijuana plants can be grown from seeds or “clones.” If plants are grown from seeds, the grower would not know which plants were male until the pollen sacs appear, at which point the male plants would be removed to avoid pollination. In contrast, a clone is produced from clipping off and replanting part of a grown female plant of a preferred quality and variety.
Pippin testified that a marijuana clone “takes any of the guessing games out of it, you don’t have to worry about that plant turning into a male and having to get rid of it, you know its sex, you know its variety, you know the plant, you pulled it off of a good plant, the type, you got to have the bud, you want to create that, that’s why people clone.” Pippin explained that clones are “obvious” during the germination stage because they will have different root structures when pulled out of the soil, compared to plants grown from seedlings. Pippin testified that clippings are considered the same as marijuana plants because “the second you put [the clipping] in the grow medium you can refer to it as a plant,” and if “you take that clipping and you embed it in some type of a grow medium, your intention for that is a plant.”
Pippin testified the 409 germinating cloned plants found at Bell Plastics were in covered trays under fluorescent-type lights. These plants were still small and developing roots, and some were derived from clippings and planted in grow medium. The 36 larger plants were in pots. They had started to flower and were about 30 days away from producing buds for harvest. Pippin testified all the plants were healthy and well-cared for, and he believed every plant would have survived and grown to maturity.
Pippin testified that Tosto told him the plants were clones, some obtained from a cannabis club or some type of marijuana dispensary and others from clippings taken off their own existing plants. The plants were in an average type of hydroponic garden with a sophisticated cultivation system. There were small florescent lights over the grow trays, along with two higher quality and larger grow lights. Pippin testified that such lights are very expensive and result in high electric bills. As a result, law enforcement officers look for spikes in electric bills as evidence of indoor gardens. However, such gardens are harder to find when located in businesses where high electric bills are not as obvious.
Pippin testified that an average person would smoke five to 10 joints to stay high all day, which equates to 31.5 ounces per person for six months when calculated using the higher number of joints. The optimal potency life for marijuana is three to six months, after which a person would need to smoke twice as much marijuana to obtain the same effect, i.e., approximately 62 ounces per person for six months. Pippin testified that 248 ounces of reduced potency marijuana would keep four people high for six months.
Pippin estimated that each healthy plant found at Bell Plastics, if grown to maturity, could have produced at least six ounces of usable buds, resulting in approximately 2,454 total ounces (153.375 pounds or 69,939 grams) obtained from 409 plants.
Pippin testified that at the time of the investigation Tuolumne County followed state guidelines for possession of medical marijuana, which allowed one person to have no more than 12 immature or six mature plants at any given time. Pippin testified that based upon his prior investigations, if he determined that one person had valid paperwork and 24 mature plants, he would seize the appropriate number of plants to bring that person into compliance with state guidelines.
Pippin testified that one year prior to the discovery of the garden at Bell Plastics, he responded to Scott Kennedy’s residence and found about 76 marijuana plants in his backyard. Kennedy presented a valid physician’s recommendation at that time. Pippin allowed Kennedy to keep 12 plants for his own personal use and seized the rest as beyond compliance with the state guidelines.
Pippin testified that after he examined the grow room at Bell Plastics, he determined that Tosto and Ms. Kennedy had valid, nonexpired medical recommendations to use marijuana as of May 9, 2007. Scott Kennedy had an identification card for an out-of-town cannabis club that expired on May 5, 2007, which meant he could not obtain marijuana or materials from that particular club. Kennedy did not present Pippin with any other paperwork, but Pippin recalled his prior encounter with Kennedy and that he presented a valid physician’s recommendation the previous year.
Based on the three valid recommendations held by Tosto and the Kennedys, Pippin allowed Tosto to keep the 36 larger plants in pots (12 plants per person), and seized the 409 germinating plants in the trays. Pippin subsequently determined the physician’s recommendation for Kennedy expired prior to May 9, 2007.
Defense evidence
Dr. Raymond Rowell is a licensed physician with a general practice in Livermore. He has about 8,000 patients and issues marijuana recommendations to about one out of eight or 10 patients. Dr. Rowell testified that on May 5, 2006, he treated Kennedy as a patient, and determined he suffered from “very generalized conditions, anxiety, stress, insomnia, typically caused by stressors that everyone deals with,” which would be amenable to treatment through marijuana use. Kennedy said he was using one gram of marijuana per day. Dr. Rowell issued a marijuana recommendation to Kennedy for one year. Dr. Rowell explained the one-year expiration was a conventional limitation to ensure the patient would return for further evaluation of symptoms. “I don’t consider … that on … 5-5-07, he’s legal and then [on] 5-6-07 he is a criminal…. [T]hat is not what that date is supposed to mean.” He again saw Kennedy on August 18, 2007, and issued a two-year marijuana recommendation.
Dr. Rowell examined Tosto on August 8, 2006, based on a reference from Kennedy. Tosto reported that he suffered from migraine headaches, anxiety, stress, insomnia, nausea, and other symptoms related to migraines, and said he used one gram of marijuana per day, and three to five grams per week. Dr. Rowell issued Tosto a medical marijuana recommendation for one year. Dr. Rowell testified he did not know either Tosto or Kennedy very well and explained: “How well can you really get to know someone by taking their basic medical stuff unless you make them come in all the time?”
Christopher Conrad testified as a “marijuana expert witness” for the defense. He testified the marijuana plants seized in this case would only yield a quarter to half an ounce of bud per plant, for a total of eight ounces from the 36 larger plants. A patient would use 10 joints per day, which would require six pounds per year. Conrad testified the plants at Bell Plastics would have produced a total of one and one-half pounds to two pounds per year.
Conrad testified that according to federal law, a marijuana cutting becomes a clone when the root ball clearly attaches to the medium. Conrad testified that 300 of the 409 marijuana clones found at Bell Plastics had only the potential to grow into plants because they had not taken root. When asked for federal authority on that point, Conrad testified that he believed “it is in case law, but I can’t point you to it because I just get hired to look for roots based on that section of the code.”
Conrad explained that growers typically cultivate more plants than needed, and they cull or eliminate the plants with undesirable characteristics. Conrad testified the indoor garden at Bell Plastics could not have produced a reasonable amount of marijuana for medical use by three or four people. Conrad conceded the photographs of the clones showed healthy plants and the 409 germinating plants were capable of growing into maturity if properly cared for, but he claimed a typical indoor plant only produced a half ounce of bud. He thought the 36 larger plants would have produced a total of four and a half to eight ounces.
Conrad explained that state guidelines in effect when the plants were discovered in this case allowed a patient to possess 12 immature or six mature plants, but he explained there was currently a debate in the courts as to “whether it was Constitutional for the legislature to put a cap on people’s gardens.”
Rebuttal Evidence
Detective Pippin testified he usually gave medical marijuana growers the benefit of the doubt when he discovered plants in excess of the state guidelines. Instead of requesting that charges be filed against Kennedy when he found his outdoor marijuana garden the previous year, Pippin simply confiscated the extra plants. He examined 25 percent of the 409 germinating plants and observed roots coming from the bottom of the plants. No one at Bell Plastics told Pippin that they were going to cull or eliminate any of the marijuana plants in the grow room. Pippin testified that Conrad’s estimate of the small amount of marijuana that the 36 larger plants would produce was unbelievable.
The defense recalled Conrad, who testified that a recent court ruling held the state limits on the amount of marijuana plants a patient could possess was unconstitutional. Patients could now lawfully possess reasonable amounts of marijuana plants rather than specific quantities.
DISCUSSION
I. CALCRIM No. 2370.
Tosto contends the court improperly instructed the jury with CALCRIM No. 2370, as to the elements of the affirmative defense that he lawfully cultivated marijuana for his own personal medical needs. Tosto argues this instruction improperly shifted the burden to the defense to prove the existence of the medical marijuana defense by a preponderance of the evidence.
We note neither Tosto nor Kennedy raised this objection to CALCRIM No. 2370 during trial. Tosto challenges the validity of the instruction, and also raises the alternative argument, that defense counsel’s failure to object resulted in ineffective assistance. In general, the failure to object to a jury instruction results in waiver of the alleged error unless the error affects the substantial rights of the defendant, “i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; People v. Bolin (1998) 18 Cal.4th 297, 326.) The determination of whether the error affected the defendant’s substantial rights necessarily requires an examination of the merits of the claim, “at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” (People v. Anderson, supra, 26 Cal.App.4th at p. 1249.) We will thus consider the underlying merits of this instructional argument to determine if Tosto’s substantial rights were affected or counsel was prejudicially ineffective for failing to object.
A. The CUA’s affirmative defense
Section 11357 criminalizes the possession of marijuana, while section 11358 criminalizes the cultivation of marijuana. The CUA (§ 11362.5) was added by voter initiative “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate 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 … any … illness for which marijuana provides relief.” (§ 11362.5, subd. (b)(1)(A); People v. Mower (2002) 28 Cal.4th 457, 463 (Mower).) The CUA was also enacted “[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” (§ 11362.5, subd. (b)(1)(B).)
Section 11362.5, subdivision (d) of the CUA grants “a limited immunity from prosecution” for the offenses of possession or cultivation of marijuana, and allows the defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial. (Mower, supra, 28 Cal.4th at p. 464.) It states:
“Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to 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).)
“As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal -- so long as its conditions are satisfied -- than the possession and acquisition of any prescription drug with a physician’s prescription…. [T]he provision renders possession and cultivation of marijuana noncriminal under the conditions specified.” (Mower, supra, 28 Cal.4th at p. 482.)
“[¶] In sum, the defense provided by section 11362.5(d) relates to the defendant’s guilt or innocence, because it relates to an element of the crime of possession or cultivation of marijuana. Thus, this defense negates the element of the possession or cultivation of marijuana to the extent that the element requires that such possession or cultivation be unlawful.” (Mower, supra, 28 Cal.4th at p. 482, italics in original.)
In Mower, the California Supreme Court held the existing jury instruction on the section 11362.5, subdivision (d) defense was invalid because it expressly stated the defendant had the burden of proof as to the underlying facts of the defense by a preponderance of the evidence. (Mower, supra, 28 Cal.4th at p. 464.) In doing so, Mower clarified that the defendant has the burden of proof as to the facts underlying the defense contained within section 11362.5, subdivision (d) of the CUA. (Ibid.) Mower based its conclusion on the rule of “convenience and necessity,” which states “unless it is ‘unduly harsh or unfair,’ the ‘burden of proving an exonerating fact may be imposed on a defendant if its existence is “peculiarly” within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient.’ [Citations.]” (Id. at p. 477.) The facts underlying the defense are that the defendant “was a ‘patient’ or ‘primary caregiver,’ that he or she ‘possesse[d]’ or ‘cultivate[d]’ the ‘marijuana’ in question ‘for the personal medical purposes of [a] patient,’ and that he or she did so on the ‘recommendation or approval of a physician’ [citation]. The existence of these facts is peculiarly within a defendant’s personal knowledge, and proof of their nonexistence by the prosecution would be relatively difficult or inconvenient.” (Ibid.)
Mower further held that “as to the facts underlying the defense provided by section 11362.5(d), defendant is required merely to raise a reasonable doubt,” rather than to prove those facts by a preponderance of the evidence. (Mower, supra, 28 Cal.4th at pp. 481, 464.) In reaching this conclusion, Mower relied upon Evidence Code section 501, which provides that “when a statute allocates the burden of proof to a defendant on any fact relating to his or her guilt, the defendant is required merely to raise a reasonable doubt as to that fact.” (Mower, supra, 28 Cal.4th at p. 479; Evid. Code, § 501.) The defendant may “‘prove’ the ‘elements’ of [the] given defense merely by raising a reasonable doubt as to their existence or nonexistence.” (Mower, supra, 28 Cal.4th at p. 483.)
Mower thus held the defendant “may not merely point to the defense, but has the burden to raise a reasonable doubt about the facts underlying this [affirmative] defense.” (People v. Frazier (2005) 128 Cal.App.4th 807, 818, 820.)
As applicable to the instant case, the defendant argues that the instruction on the CUA’s affirmative defense did exactly what was condemned in Mower: it allocated to the defendant the burden of proving the underlying facts of the CUA defense by a preponderance of the evidence. This argument is based upon a single phrase taken out of context from CALCRIM No. 2370, that the defendant had the burden of producing evidence “tending to show” his cultivation of marijuana was for personal medical purposes.
“‘It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] “[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.” [Citation.] “The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.” [Citation.]’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 328.)
The entirety of the instructions refutes the defendant’s claim of instructional error. Tosto was charged with unlawfully planting or cultivating marijuana in violation of section 11358. The jury was instructed that the prosecution had the burden of proving the elements of the offense, that the defendant unlawfully planted or cultivated one or more marijuana plants, and the defendant knew the substance he planted or cultivated was marijuana. (CALCRIM Nos. 2370, 220.)
As demonstrated, ante, both defendants relied upon the CUA’s affirmative defense, as stated in section 11362.5, subdivision (d), based upon the trial evidence that they had seen the same physician, received medical recommendations to use marijuana for various physical ailments, and they possessed a reasonable amount for their medical needs. As such, the jury received CALCRIM No. 2370, which states in relevant part:
“[¶] Possession of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that his possession or cultivation of marijuana was for personal medical purposes or as the primary caregiver of a patient with a medical need with a physician’s recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient’s current medical needs. If you have a reasonable doubt about whether the defendant’s possession or cultivation of marijuana was unlawful under the Compassionate Use Act, you must find the defendant not guilty.” (Italics added.)
While the defendant claims that the first italicized phrase, “tending to show,” required the jury to find the underlying facts true by a preponderance of the evidence, this argument ignores the second italicized phrase, which clearly informed the jury that it was required to find the defendants not guilty if the jury had a reasonable doubt about whether the defendants’ cultivation of marijuana was unlawful under the CUA. This is completely consistent with Mower’s analysis of the allocation and nature of the burden of proving the CUA’s affirmative defense.
The entirety of the instructions further refutes the claim of instructional error. The jury was instructed on the prosecution’s burden of proof beyond a reasonable doubt (CALCRIM No. 220), and that the defendants had an absolute constitutional right not to testify and could rely on the state of the evidence and “argue that the People have failed to prove the charges beyond a reasonable doubt.” (CALCRIM No. 355.) The jury also received an instruction on the defendants’ alleged mistake of fact (growing marijuana in the mistaken reliance upon the CUA’s affirmative defense):
“[¶] The defendants are not guilty of a violation of … section 11358 if they did not have he intent required to commit the crime because they reasonably did not know a fact or reasonably and mistakenly believed a fact.
“If a defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit a violation of … section 11358.
“If you find that a defendant believed that the defendants were lawfully planting and cultivating a quantity of marijuana appropriate to their medical needs, and if you find that belief was reasonable, he did not have the intent required for a violation of … section 11358.
“If you have a reasonable doubt about whether a defendant had the intent required for a violation of … section 11358, you must find him not guilty of that crime.” (CALCRIM No. 3406.)
The jury received two special instructions about the relevance of a physician’s recommendations to use marijuana for a medical purpose. The court instructed the jury that it could not “consider, or speculate about, the nature of the medical condition for which a defendant was given a recommendation for marijuana use by a physician under the Compassionate Use Act. This is a medical determination and is not subject to review or scrutiny by you. The only fact for you to determine is whether a defendant has presented evidence tending to show that he had such a recommendation.” The jury was further instructed that the expiration of a physician’s recommendation did not mean, as a matter of law, a defendant could not continue to possess marijuana “so long as that marijuana is possessed for a defendant’s personal medical needs.”
The entirety of the instructions thus reflects the jury was properly instructed according to the nature and allocation of the defendant’s burden of proof as to the CUA’s affirmative defense, consistent with the Supreme Court’s interpretation of that burden in Mower. There is no reasonable likelihood the jury believed the defendant had to prove the underlying facts for the CUA’s affirmative defense by a preponderance of the evidence.
B. Mentch’s concurring opinion
The defendant’s claim of instructional error further relies upon language in Justice Chin’s concurring opinion in People v. Mentch (2008) 45 Cal.4th 274 (Mentch) to support his argument that CALCRIM No. 2370 misstated the defendant’s burden of proof as to the CUA’s affirmative defense. Mentch addressed the definition of a “primary caregiver” under the CUA and the subsequently-enacted Medical Marijuana Program Act (MMP), and held the defendant therein was not entitled to the defense instruction since he was not a primary caregiver. (Mentch, supra, 45 Cal.4th at pp. 277-278, 292.) Additional briefing was requested as to whether the defendant’s burden to raise a reasonable doubt regarding the CUA’s affirmative defense was “a burden of producing evidence under Evidence Code section 110 or a burden of proof under Evidence Code section 115.” (Mentch, supra, 45 Cal.4th at p. 293.) However, Mentch declined to address this issue because it concluded the defendant was not entitled to the defense instruction.
Justice Chin filed a concurring opinion in Mentch, which agreed with the majority’s interpretation of the “primary caregiver” defense and addressed the instructional issues briefed by the parties but not addressed by the majority. Justice Chin acknowledged Mower’s holding about the nature and allocation of the burden of proving the affirmative defense. The concurring opinion also acknowledged the jury in Mentch was instructed that, to establish the defense of compassionate use, the burden was on the defendant to raise a reasonable doubt as to guilt. (Mentch, supra, 45 Cal.4th at p. 292 (conc. opn. of Chin, J.).) Justice Chin noted the jury was further instructed that the prosecution had “‘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.’ [Citation.]” (Id. at pp. 292-293.)
Justice Chin wrote that the standard instructions did not “place any burden whatever on the defendant.” (Mentch, supra, 45 Cal.4th at p. 292 (conc. opn. of Chin, J.).) He further wrote that in response to the court’s briefing request, the parties agreed about the nature of the defendant’s burden:
“They agree that the defendant’s burden is only to produce evidence under Evidence Code section 110, and that once the trial court finds the defendant has presented sufficient evidence to warrant an instruction on the defense, the defendant has fully satisfied this burden; accordingly, the court should not instruct the jury on any defense burden….
“If the parties’ answer to our question is correct, [the pattern instruction] misinstructs the jury. The Attorney General argues that any error in this case was harmless beyond a reasonable doubt for two reasons: (1) error in requiring defendant to raise a reasonable doubt as to a defense is inherently harmless in light of the instructions as a whole, which make clear to the jury that the prosecution has the overall burden of proof beyond a reasonable doubt; and (2) defendant simply did not establish the compassionate use defense….” (Id. at p. 293.)
While Justice Chin acknowledged the instructional issue was not before the court, since the defendant was not entitled to the defense instruction, he wrote: “Nevertheless, the question remains important” as to whether the court should even instruct the jury on this burden, because an instruction “‘on the defendant’s burden of production may run risks that are best avoided.’” (Mentch, supra, 45 Cal.4th at p. 294 (conc. opn. of Chin, J.).) Justice Chin advised trial courts to be “cautious before instructing on any defense burden.” (Ibid.)
The defendant herein relies upon Justice Chin’s concurrence and argues CALCRIM No. 2370 is similarly flawed. This reliance is misplaced. First, there is nothing in the instant instructions that tells the jury the defendants had the burden of proving the affirmative defense by a preponderance of the evidence. Second, Justice Chin’s concern about the instructions in Mentch was based on the basic question of whether further clarification of the nature of the burden of proof was required; the phrase “tending to show” in CALCRIM No. 2370 was not at issue or relied upon to demonstrate that the instruction was somehow confusing to the jury. Third, Justice Chin reasserted the court’s support of Mower but raised the concern that trial courts should be cautious when instructing on the defense burden.
Even if CALCRIM No. 2370 could be subject to the interpretation suggested by the defendant, any error is necessarily harmless beyond a reasonable doubt given the entirety of the instructions. As set forth, ante, the jury herein was repeatedly instructed that the prosecution had the burden of proving the elements of the charged offense beyond a reasonable doubt, and the jury was required to find the defendants not guilty if it had a reasonable doubt that their acts were unlawful under the CUA.
II. The CUA and quantity limitations.
Tosto next contends the court undermined his affirmative defense because it failed to instruct the jury about the different quantity standards that applied to medical marijuana cultivators under both the CUA and the MMP. He complains (1) the court only instructed the jury about the “reasonable amount” limitation contained within the CUA; (2) the court also should have instructed the jury about the specific quantity limitations contained in the MMP; and (3) the instructional omission was prejudicial because Tosto and the Kennedys lawfully possessed the 36 larger plants within the MMP’s quantity restrictions.
The defendant’s instructional contention involves the interplay between the CUA of 1996 (§ 11362.5), which was added by voter initiative, and the MMP (§ 11362.7 et seq.), enacted by the Legislature in 2003. (Mentch, supra, 45 Cal.4th at p. 277.) As explained, ante, the CUA grants “a limited immunity from prosecution” for the offenses of possession or cultivation of marijuana, which allows the defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial. (Mower, supra, 28 Cal.4th at p. 464.)
The CUA does not limit the amount of marijuana that one may possess or cultivate in order to come within the purview of the statute, “as long as the drug is possessed or cultivated for ‘the personal medical purposes of the patient.’ (§ 11362.5, subd. (d).)” (People v. Windus (2008) 165 Cal.App.4th 634, 640.) A defendant may rely on the CUA’s affirmative defense of lawful possession or cultivation “despite the fact that his medical recommendation does not specify the amount he may possess ….” (Id. at p. 643.) Moreover, there is “nothing in the [CUA] that requires a patient to periodically renew a doctor’s recommendation regarding medical marijuana use. The statute does not provide … that a recommendation ‘expires’ after a certain period of time.” (Id. at p. 641.)
In People v. Trippet (1997) 56 Cal.App.4th 1532 (Trippet), the court addressed the amount of marijuana that a patient may lawfully possess or cultivate under the CUA. The defendant therein was charged with transportation and possession of more than 28.5 grams of marijuana, and the trial court refused to allow him to present evidence on the CUA’s partial defense because those offenses were not included within the specific statutory language. Trippet reviewed the ballot pamphlets and initiative statements regarding the CUA, and held the partial defense applied to the charged offenses. (Id. at pp. 1547-1549.) In doing so, the court noted:
“[W]e are not remotely suggesting that, even with a physician's ‘recommendation or approval,’ a patient may possess an unlimited quantity of marijuana. The ballot arguments of the proponents … are simply inconsistent with the proposition that either the patient or the primary caregiver may accumulate indefinite quantities of the drug. The statute certainly does not mean, for example, that a person who claims an occasional problem with arthritis pain may stockpile 100 pounds of marijuana just in case it suddenly gets cold. The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the ‘patient's current medical needs’ must, of course, remain a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician's opinion regarding the frequency and amount of the dosage the patient needs.” (Id. at p. 1549, italics added.)
In 2003, the Legislature enacted the MMP, which “was passed in part to address issues not included in the [CUA], so as to promote the fair and orderly implementation of the [CUA] and to ‘[c]larify the scope of the application of the [A]ct.’ [Citations.]” (Mentch, supra, 45 Cal.4th at p. 290.) In contrast to the CUA, the MMP includes specific quantity limitations and states that a qualified patient or primary caregiver may not possess more than eight ounces of dried marijuana per patient plus no more than six mature or 12 immature marijuana plants, unless he or she has a doctor’s recommendation that this quantity does not meet the patient’s medical needs. (§ 11362.77, subds. (a), (b); People v. Wright (2006) 40 Cal.4th 81, 85-87.) The MMP further provides that counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers “to exceed the state limits set forth” in section 11362.77, subdivision (a). (§ 11362.77, subd. (c).)
The defendant contends the jury herein should have been instructed on the MMP’s quantity limits because there was evidence that three people -- Tosto and the Kennedys -- had physician’s recommendations to use marijuana and they were lawfully entitled to possess the 36 larger marijuana plants found in the indoor grow room (three qualified patients times the 12 plants allowed by the MMP). The failure to instruct on the MMP’s quantity limitations was prejudicial because it allowed the jury to “skip over the question of whether the 409 clones should be treated as the equivalent of actual marijuana plants, in spite of testimony” from Conrad, the defense expert. Defendant asserts “that most of the clones were not yet ‘plants’ at all, that many of them would be ‘culled,’ and that the surviving clones would eventually replace the 36 older plants in the grow. Instead, the instructional breakdown allowed the prosecution to treat all of these two-inch-tall clippings as if they were already full grown plants bristling with buds and ready to be harvested.” The defendant argues the failure to instruct on the MMP’s quantity limitations undermined his defense that “the grow actually adhered to the letter of California medical marijuana law” in violation of his constitutional rights.
As with the defendant’s other instructional contention, neither Tosto nor Kennedy raised this particular objection during trial, but we will consider the underlying merits of this instructional argument to determine if Tosto’s substantial rights were affected or counsel was prejudicially ineffective for failing to object.
The entirety of the record reveals the reason why the court did not instruct the jury on the MMP’s quantity limits. Indeed, the defendant’s argument is deceptively simple because it ignores the procedural history of medical marijuana cases decided by this state’s appellate courts. In May 2007, the sheriff’s department discovered the indoor marijuana garden at Bell Plastics. At the time that the indoor garden was discovered, the MMP’s quantity limitations were applicable to defendants who relied upon the CUA’s affirmative defense.
In May 2008, however, the Second District, Division 3, published People v. Kelly (2008) 163 Cal.App.4th 124 (Kelly) and held the MMP’s quantity limitations amounted to an unconstitutional amendment of the CUA. Kelly held the Legislature could not amend a voter initiative such as the CUA, unless the initiative itself grants the Legislature the authority to do so. The CUA did not grant such power to the Legislature. Kelly further held the MMP’s quantity limitations clearly amended the CUA, and such an amendment was invalid without voter approval. Kelly held that while the CUA did not contain quantity limitations, it cited to Trippet’s discussion of the issue and held the CUA did not give patients “a free pass” to possess unlimited quantities of marijuana, and the amount possessed by patients should be reasonably related to the patient’s medical needs. On July 31, 2008, the Third District published People v. Phomphakdy (2008) 165 Cal.App.4th 857 (Phomphakdy) and agreed with Kelly that the MMP’s quantity limitations were an unconstitutional legislative amendment of the CUA.
On August 6, 2008, the joint jury for Tosto and Kennedy began in the wake of Kelly and Phomphakdy. During the course of the trial, the court and the parties repeatedly discussed the impact of these cases on the defendants’ reliance on the CUA’s affirmative defense and the language of the instructions. Indeed, the defense specifically asked the court not to instruct on the MMP’s quantity limitations, to prevent the prosecutor from arguing that the defendants’ more than 12 plants amounted to an unreasonable possession. The prosecutor agreed that it would be inappropriate to rely upon any “hard and fast numbers” in light of Kelly, and he intended to argue that the number of plants were “unreasonable.” As set forth, ante, the court instructed the jury with CALCRIM No. 2370 as to the CUA’s affirmative defense, using Trippet’s language that “[t]he amount of marijuana possessed must be reasonably related to the patient’s current medical needs.” (Italics added.) The court did not instruct on the MMP’s quantity limitations.
On August 13, 2008, Kennedy and Tosto were convicted as charged. The California Supreme Court subsequently granted review in People v. Kelly, supra, 163 Cal.App.4th 124 (review granted Aug. 13, 2008, S0164830) and People v.Phomphakdy, supra, 165 Cal.App.4th 857 (review granted Oct. 28, 2008, S0166565). The cases are still pending before the Supreme Court.
As the defendant acknowledges, the court and the parties herein repeatedly discussed Kelly, agreed the MMP quantity limits no longer applied, and sought to craft an instruction that would not run afoul of Kelly. As the defendant further acknowledges, the court and the parties ultimately agreed the jury herein should be instructed pursuant to the “reasonableness” standard in the CUA, and that the MMP’s quantity limits were no longer relevant. Nevertheless, the defendant contends the court’s failure to instruct on the MMP’s quantity limitations deprived him of a defense in violation of his constitutional rights.
The entirety of the record, however, reflects the court and the parties believed they were obliged to follow Kelly and Phomphakdy, and the defendants asked the court not to instruct on the quantity limitations. In their closing arguments, the prosecutor and defense attorneys agreed that under the CUA, the defendant must possess an amount of marijuana plants that were reasonable related to their current medical needs. The parties obviously disagreed as to what was reasonable.
In any event, the jury herein was well aware of the MMP’s quantity limitations based upon the testimony of Pippin and Conrad, the respective experts for the prosecution and defense. Both experts specifically testified that at the time the marijuana plants were found at Bell Plastics, the state guidelines permitted a patient to possess 12 plants. Indeed, Pippin testified that his common practice in previous cultivation cases was to allow a qualified patient to keep 12 marijuana plants and to eradicate the balance. Conrad even testified that the quantity limitations had been found unconstitutional.
More importantly, however, the absence of an instruction on the MMP’s quantity limitations allowed the defendants to rely upon Conrad’s testimony that their possession of the 409 germinating clones was reasonable, because they were growing those plants simply in preparation to replace the 36 plants after they were harvested. In addition, Tosto’s attorney specifically argued the defendants lawfully possessed the 36 larger plants based on “the guidelines at that time,” since three people had valid physicians’ recommendations. “What does that tell you? Does it tell you that they were attempting to comply with what they thought the law was at that time?”
We thus conclude the defendant was not deprived of his constitutional right to a defense and the jury was properly instructed on the reasonableness of the amount possessed.
III. Imposition of fines and penalties.
At the joint sentencing hearing for the defendants, the court ordered both Tosto and Kennedy to pay $1,770 in fines, “including penalty assessments,” but failed to state the statutory basis for the fines or how the penalty assessments were calculated. Tosto argues the court was required to separately state the imposition of fines and penalties and the statutory basis for such orders, and that the abstract of judgment or probation order must reflect these orders.
Respondent concedes the matter must be remanded for the court to specify “the statutory bases of all fees, fines, and penalties imposed upon defendant.” (People v. Eddards (2008) 162 Cal.App.4th 712, 717-718, fn. omitted.)
DISPOSITION
The matter is remanded to the trial court to specify “the statutory bases” for all fines and penalties imposed on Tosto. In all other respects, the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Poochigian, J.