Opinion
F073424
07-31-2017
THE PEOPLE, Plaintiff and Respondent, v. LISA ELLEN TRACY, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CRF45204, CRF45205)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Smith, J.
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INTRODUCTION
Appellant Lisa Ellen Tracy stands convicted of violating Health and Safety Code section 11358, cultivation of marijuana; and section 11364.1, subdivision (a), possession of a smoking device. Tracy appeals contending CALCRIM No. 3412, which instructs on compassionate use, erred in stating the law because it limited the quantity of marijuana she could possess to a reasonable amount. She also contends that fines and fees set forth in the abstract of judgment must be stricken because they were not part of the oral pronouncement. As to the claim of prejudicial instructional error, we disagree. We will, however, remand the matter for the trial court to impose any mandatory fines and fees.
References to code sections are to the Health and Safety Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
An information, filed September 15, 2014, charged Tracy in count I with cultivation of marijuana and in count III with possession of a smoking device. As to count I, the information also alleged that Tracy had suffered four prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4). A co-defendant, Stephen Smith, also was charged but is not an appellant in this appeal.
On January 28, 2016, a jury was empaneled to try the case. Tuolumne County Sheriff's Deputies David Vasquez and Victor Serrano testified. The deputies traveled to a residence on Highway 49 to conduct a marijuana grow compliance check. The deputies saw two medical marijuana recommendations posted on the property. In one recommendation, the physician recommended 80 marijuana plants for Tracy; the other was a recommendation for 99 marijuana plants for Smith.
Vasquez looked over the fence where the marijuana recommendations were posted and saw numerous plants growing. Vasquez estimated the plants would yield 100 to 200 pounds of marijuana at harvest.
Serrano knocked on the door and moments later Tracy answered. Tracy told the deputies she lived on the property with Smith and she, Smith, and Oscar Espinoza were growing the marijuana. Tracy stated she used marijuana for back pain and premenstrual symptoms. She indicated she smoked the marijuana, using seven grams a day.
Vasquez knew from his training and experience that seven grams a day was an excessive amount of marijuana. When Vasquez questioned that figure, Tracy acknowledged that "was a lot" and indicated the correct usage was closer to 3.5 grams a day. Serrano testified that typical users of marijuana use one to three grams per day.
Tracy told the deputies she was growing a quantity of marijuana that would provide her with a year's supply. Vasquez calculated that Tracy would need about three pounds of marijuana per year, based on 3.5 grams per day. Vasquez told Tracy he calculated the plants on her property would produce one to two pounds of usable marijuana each, which would equate to 100 to 200 pounds, and asked Tracy if "that was reasonable." She responded, "No, that's a lot." Tracy explained that she obtained the initial medical marijuana recommendation for 80 plants because she was "planning to sell the remainder that she did not use."
Near the end of their conversation, Vasquez asked Tracy if there was anything illegal inside the home. She stated there was a methamphetamine pipe in the house, retrieved it, and handed it to the deputies.
Vasquez, Serrano, and several other deputies returned to Tracy's home on September 5, 2014, to execute a search warrant. Deputies found 106 marijuana plants growing in the garden and noticed another 36 plants had been pulled out of the ground. Deputies found recently cut marijuana branches hanging from twine in several of the bedrooms. Hanging in this manner accelerated the drying process needed to produce usable marijuana.
Serrano asked Tracy about the 36 plants that had been removed from the garden and she responded that Espinoza removed them the previous day. Tracy then told Serrano, "I'm going to be honest with you. I got into this for the money. I am in debt and spent all $180,000 of my inheritance. [Espinoza] was my middle man for this whole thing." Tracy explained Espinoza was supposed to sell Tracy's excess marijuana and give her a share of the proceeds.
Serrano estimated the 142 plants would produce 142 pounds of usable marijuana and estimated the marijuana was "mid-grade," typically selling for $1,200 per pound. Based upon a sales price of $1,200 per pound, Tracy's crop of marijuana had a value of slightly over $170,000.
Tracy testified on her own behalf. She claimed she smoked marijuana eight to 10 times per day. She denied ownership of the methamphetamine pipe she turned over to Vasquez. Tracy testified she never had any plan to sell any of the marijuana and denied telling deputies she planned to sell the excess marijuana. She admitted prior felony convictions for transportation of methamphetamine, possession of methamphetamine for sale, and misappropriation of a government document.
The jury found Tracy guilty as charged in both counts. Tracy admitted that she had had four prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4).
On March 21, 2016, the trial court suspended imposition of sentence and placed Tracy on probation for a period of five years. One condition of probation was that she first serve nine months in the county jail.
Tracy filed a timely notice of appeal.
DISCUSSION
Tracy contends the trial court erred when it instructed with CALCRIM No. 3412, because the instruction erroneously imposed a requirement that the amount of marijuana cultivated "must be reasonably related to the patient's current medical needs." She also contends that fines and fees must be stricken because they were not part of the oral pronouncement.
I. CALCRIM No. 2370
The relevant portion of section 11362.5, the Compassionate Use Act of 1996 (CUA), provides that a patient who has written approval of a physician and cultivates marijuana for the patient's personal medical purposes cannot be convicted of cultivating marijuana in violation of section 11358. (§ 11362.5, subd. (d).) Tracy claimed her cultivation of marijuana was lawful pursuant to this code section.
Section 11362.5, subdivision (d) states in full: "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." --------
The trial court instructed the jury with CALCRIM No. 2370 to provide the jury with the law related to the CUA defense. The relevant portion of the instruction stated:
"Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana for personal, medical purposes or as the primary caregiver of a patient with a medical need when a physician has recommended or approved such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient's current medical needs. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime." (Italics added.)
Tracy argues this instruction erroneously stated the law because section 11362.5, subdivision (d) permits a defendant in her position to cultivate marijuana "'for the personal medical purpose of the patient,'" while the instruction imposed the requirement that the amount cultivated "must be reasonably related to the patient's current medical needs."
The phrase "reasonably related to the patient's current medical needs" appears to have originated in People v. Trippet (1997) 56 Cal.App.4th 1532, 1549 (Trippet), one of the first cases to interpret the CUA. Trippet was arrested after officers found two pounds of marijuana in her vehicle. The trial court precluded her from presenting a defense based on medical necessity, concluding she could not establish the elements of the defense. Trippet was convicted of possession and transportation of marijuana.
The CUA was passed while the case was pending in the appellate court. The parties briefed the effect the new law had on the case, and the appellate court discussed the CUA extensively, including the history and arguments in support of and against the proposition. The appellate court rejected Trippet's argument that the CUA placed no limits on the amount of marijuana a person may possess, so long as it was possessed for the patient's personal medical needs. "To hold as she effectively urges would be tantamount to suggesting that the proposition's drafters and proponents were cynically trying to 'put one over' on the voters and that the latter were not perceptive enough to discern as much." (Trippet, supra, 56 Cal.App.4th at p. 1546.)
After concluding the matter was to be remanded to the trial court to permit Trippet the opportunity to present a CUA defense to the charges, the appellate court confirmed that it was "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, some of which are quoted above, 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." (Trippet, supra, 56 Cal.App.4th at p. 1549.)
Other appellate courts that have considered the issue have agreed with this statement in Trippet. (People v. Wayman (2010) 189 Cal.App.4th 215, 223 [transportation of marijuana must be reasonably related to patient's medical needs]; People v. Windus (2008) 165 Cal.App.4th 634, 643 [possession of one and one-half pounds of marijuana may fall within the CUA if defendant could prove amount was reasonably related to current medical needs]; People v. Frazier (2005) 128 Cal.App.4th 807, 824-825 [rejecting challenge to reasonably related language in jury instruction].)
Not only have the appellate courts concurred with Trippet on this issue, but the Supreme Court has also, although not holding so directly. The Supreme Court has considered the CUA, and the related Medical Marijuana Program (MMP), in three relevant cases. In People v. Mower (2002) 28 Cal.4th 457, the Supreme Court cited Trippet with approval, although not addressing the "reasonably related" language. In People v. Wright (2006) 40 Cal.4th 81 (Wright), however, this language was mentioned, if not directly addressed. Wright addressed the application of the MMP to cases in which a CUA defense was proposed or offered. The original issue for which review was granted was related to transportation of marijuana reasonably related to a CUA patient's reasonable medical needs. At the time there was a split of authority in the Courts of Appeal whether the CUA provided a defense to transportation charges since, by its terms, the defense was limited to cultivation and possession.
While the case was pending in the Supreme Court, the MMP was passed, which authorized transportation of marijuana in certain circumstances, rendering moot the conflict in the Courts of Appeal. In a footnote, the Supreme Court stated, "As both sides acknowledged at argument, however, Trippet's test for whether the defense applies in a particular case survived the enactment of the MMP and remains a useful analytic tool to the extent it is consistent with the statute." (Wright, supra, 40 Cal.4th at p. 92, fn. 7.) The Trippet test referred to the discussion in Trippet when the appellate court concluded that application of the CUA defense depended on whether the "'quantity transported and the method, timing and distance of the transportation are reasonably related to the patient's current medical needs.'" (Wright, at p. 92; Trippet, supra, 56 Cal.App.4th at p. 1551.)
People v. Kelly (2010) 47 Cal.4th 1008, addressed the issue of whether portions of the MMP impermissibly amended portions of the CUA. The MMP was an attempt by the Legislature to codify some of the uncertainty created by the CUA and the cases that interpreted the CUA. The MMP did not directly amend the CUA, but "add[ed] 18 new code sections that address[ed] the general subject matter covered by the CUA." (Kelly, at p. 1014.) The MMP established quantity limitations for possession and cultivation of marijuana for medical uses and contained a safe harbor provision that authorized possession of specific amounts of medical marijuana. (Kelly, at p. 1015.) Before resolving the issues presented, the Supreme Court discussed the relevant differences between the CUA and MMP:
"As alluded to above and further explained below, subdivision (a) of section 11362.77, by its terms, does not confine its specific quantity limitations to those persons who voluntarily register with the program and obtain identification cards that protect them against arrest. It also restricts individuals who are entitled, under the CUA, to possess or cultivate any quantity of marijuana reasonably necessary for their current medical needs, thereby burdening a defense that might otherwise be advanced by persons protected by the CUA. Moreover, although subdivision (b) of section 11362.77 allows possession of a quantity 'consistent with the patient's needs' that is greater than the amount set out in subdivision (a), it affords this protection only if a physician so recommends—a qualification not found in the CUA." (Kelly, supra, 47 Cal.4th at p. 1017, first italics added.)
While the Supreme Court did not hold the CUA limited possession of marijuana to the amount that reasonably was related to the patient's current medical needs, we find this comment compelling. Moreover, we agree with the appellate courts that have addressed the issue and conclude that the CUA only permits possession or cultivation of marijuana that is reasonably related to the patient's current medical needs. Indeed, without such a limitation, the limited purpose of the act would be violated by permitting anyone who obtained a recommendation to stockpile unlimited amounts of marijuana without fear of conviction. Accordingly, we conclude the jury here was properly instructed.
II. Fines and Fees
Here, the sentence was orally pronounced on March 21, 2016. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 ["In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.] A judgment in a criminal case may consist of a fine, a term of imprisonment, or both [citation], and the judgment may be imposed or, in appropriate cases, suspended."].) The oral pronouncement of a sentence supersedes the minute order on the sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471 ["Entering the judgment in the minutes being a clerical function (Pen. Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error."]; People v. Zackery (2007) 147 Cal.App.4th 380, 386-390 [same].)
In this case, before pronouncing sentence the trial court noted that it had received, read, and considered the probation report. The probation report recommended Penal Code sections 1202.4, subdivision (b) and 1202.44 fines of $1,500 each. Without reference to any code sections, the probation report further recommended that Tracy:
"Pay a fine of $1,770.00, for Count I and $700.00 for Count III, including penalty assessment, payable to the Office of Revenue Recovery at a rate and time to be determined by the Office of Revenue Recovery."
At the oral pronouncement of sentence, the trial court imposed the Penal Code section 1202.4 restitution fine of $1,500 and imposed, but suspended, the Penal Code section 1202.44 fine of $1,500. There is no other reference by the trial court to any fines or fees at the sentencing hearing. The minute order after sentencing references these Penal Code fines, but also includes imposition of a $1,770 fine for Count I and a $700 fine for Count III, without specifying any code section or sections as authority.
An appellate court cannot correct the trial court's failure to impose a discretionary fine if no objection was raised in the trial court. (People v. Tillman (2000) 22 Cal.4th 300 (Tillman).) Even if no objection was raised in the trial court, however, an appellate court can correct clerical errors that render a sentence unauthorized because the sentence excludes fines, fees, and penalties that are mandatory. (See, e.g., People v. Smith (2001) 24 Cal.4th 849 [holding that the imposition of a parole revocation fine pursuant to section 1202.45 (which first requires the imposition of a restitution fine under section 1202.4) is mandatory and may be corrected by an appellate court despite Tillman]; People v. Talibdeen (2002) 27 Cal.4th 1151 [holding that state and county penalties imposed pursuant to section 1464 (which requires another fine or financial penalty) are mandatory and may be corrected by an appellate court despite Tillman].)
In this case, neither party objected in the trial court to the oral pronouncement of sentence, which did not include financial penalties. The minute order must be corrected to exclude these financial penalties unless the sentence is an unauthorized sentence.
From the preceding discussion, it is apparent that the oral pronouncement did not include the $1,770 and $700 financial penalties. Thus, any fine, fee or penalty cannot be imposed unless exclusion of the fine, fee or penalty renders a judgment invalid, such as where the fine, fee or penalty is mandatory. We cannot determine if these amounts are mandatory or discretionary, because the trial court failed to state the statutory basis for imposition of these amounts.
Consequently, limited remand is appropriate in order to enable the trial court to impose the $1,770 and $700 financial penalties, if legally mandated, and to state the statutory basis for these amounts. If not legally mandated the trial court should correct the minute order.
DISPOSITION
The convictions and sentence are affirmed except as to the $1,770 and $700 financial penalties reflected in the minute order. The matter is remanded to the trial court to impose any mandatory financial penalties and state the statutory authority for the penalties, to exclude any discretionary financial penalties, and to prepare a corrected minute order and order granting probation.