Opinion
B226841
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL TU, Defendant and Appellant.
Law Offices of Eric D. Shevin, Eric D. Shevin, and Stephen J. Fisch for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. KA089223)
APPEAL from an order of the Superior Court of the County of Los Angeles, Steven D. Blades, Judge. Dismissed, in part, and affirmed.
Law Offices of Eric D. Shevin, Eric D. Shevin, and Stephen J. Fisch for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Following a jury trial, defendant and appellant Michael Tu (defendant) was convicted of cultivating marijuana and placed on probation for three years. On appeal, he raises numerous challenges to his conviction, one of which is from a nonappealable order and the remainder of which, as explained below, have no merit. We therefore dismiss defendant's appeal from the nonappealable order and otherwise affirm the judgment of conviction.
FACTUAL BACKGROUND
Gordon McIntosh was a property manager for "commercial properties and small offices." One of the buildings he managed, located at 1535 West McKinley Street in the City of Azusa (McKinley building), had 19 units, each approximately 1000 square feet, with small offices and roll-up doors. In 2009, McIntosh leased Unit No. 6 in that building to defendant.
Because McIntosh testified at the preliminary hearing but was unavailable to testify at trial, his preliminary hearing testimony was read into the record at trial.
On November 11, 2009, McIntosh received a telephone call from the tenant in Unit No. 5 of the McKinley building, which unit was adjacent to Unit No. 6. The tenant reported that there was an "emergency problem" because "water [was] pouring into the warehouse from underneath the wall." McIntosh drove to Azusa and, during the drive, called defendant at the two contact numbers defendant had provided, leaving messages informing defendant of the flooding in Unit No. 5 and that McIntosh would be using his key to enter Unit No. 6 in an attempt to discover the source of the flooding. In the messages, McIntosh characterized the flooding as an "emergency situation."
When McIntosh arrived at the McKinley building, he entered Unit No. 5 in an attempt to discover the source of the water leak. McIntosh observed "[a] whole lot of water . . . coming in right under the floor plate from the adjoining unit . . . ." He assumed it was coming from Unit No. 6, but later discovered that it was coming from Unit No. 7.McIntosh entered Unit No. 6 and saw "this big old greenhouse that somebody had built in that warehouse area." The greenhouse was "full of marijuana plants . . . about four-feet high."
McIntosh later learned that the source of the water was a broken copper pipe that served the toilet in Unit No. 7.
McIntosh was familiar with marijuana plants from his experience as a youth, and he "knew instantly [the plants he observed in Unit No. 6] were marijuana."
In addition to the marijuana plants, McIntosh saw a humidifier, "special lights, [and] a little table just outside the greenhouse with all the growing chemicals . . . ." It appeared to McIntosh that defendant had "tapped into the electrical panel and ran a bunch of Romex electrical wire all along the floor." McIntosh also observed that "someone had built something underneath the bathroom sink so . . . a hose [could be attached] to it, and there was a hose running from underneath [the sink] into a large trash can that was full of liquid." McIntosh "assumed that the trash can had sprung a leak and that was the source of the water damage . . . ." He immediately went outside and called the City of Azusa Police Department. When the police arrived, McIntosh told them what he had observed in Unit No. 6 and why he was concerned.
City of Azusa Police Detective Chris Franks worked as a narcotics detective and had substantial training and experience investigating the cultivation and sale of marijuana. On November 13, 2009, at 2:00 a.m., he responded to the call by going to the McKinley building, which was located in an industrial park and had nine adjacent storage units. Before arriving at the McKinley building, Detective Franks reviewed the rental agreement for Unit No. 6, and noted that it had been rented to defendant for the purpose of storing auto body replacement parts.
As discussed below, Detective Franks went to the McKinley building to execute a search warrant.
The agreement had been provided to Detective Franks by City of Azusa Police Detective Terry Henson.
Upon entering Unit No. 6, Detective Franks made the following observations: "Once [the detective left] the office area, directly to the right [was] a bathroom in another small little room, and then there [were two] . . . 55 gallon trash cans and then a table. In one of the trash cans was a little amount of water with some rubber tubing coming out of it, and at the bottom there . . . appeared to be a pump. [¶] Directly to the left of those trash cans was the door leading into the growing room. And . . . down the hallway . . . there [were] some tables there with a bunch of plant foods and items used to grow plants.
When [he] walk[ed] into the grow room to [the] left, [he] saw some fans on the floor, [and] there was a carbon dioxide tank, which [he explained was] very common [because] growers . . . introduce carbon dioxide into the growing atmosphere to help the plants grow quicker. There [were] nine high intensity lights . . . [with] 1000 watt light bulbs specially designed that were hanging over 145 marijuana plants. Each of the plants was individually planted into its own plastic container. There was ductwork that [was] above the lights and [it] looked like [the growers] were trying to keep the high temperature down by introducing a cooling atmosphere because the high intensity lights put off a lot of light, so you want to keep the temperature down. [I]f [the temperature] goes above 90 degrees that stops the growing period for the plant. [B]etween 68 and 72 is the best temperature, but obviously [it] can go a little higher than that. [¶] And [when he walked] down the hallway[,] . . . lying on the floor there [were also] numerous bags of plant soil . . . . There [were] wires coming from the junction box which led to outlets, and attached to those outlets were ballasts, and the ballasts were plugged into the high intensity lights. So the [room had] nine ballasts and nine high intensity lights. Each ballast would control one of the high intensity lights."
The only documents provided to Detective Franks concerning defendant's claim that the marijuana was grown for approved medical purposes were a one-page "medical marijuana recommendation" and the lease agreement for Unit No. 6. The medical marijuana recommendation had defendant's name and a physician's name on it, but it did not identify the illness for which the marijuana was recommended, the dosage amount of marijuana recommended, or the frequency with which the marijuana was to be taken. And in the lease agreement there was no indication that any person other than defendant was obligated under the lease. Moreover, although the lease required defendant to obtain from the property manager approval for any alterations or additions to the leased premises, Detective Franks did not receive any documentation or other information that such approval had been obtained for the substantial alterations to Unit No. 6 that were made to facilitate the growing operation.
During the investigation, Detective Franks did not find any of the typical evidence indicating that the marijuana was possessed for sale, such as "pay and owe sheets," scales, or packaging materials. Nevertheless, he opined that the marijuana was possessed for sale based on the number of plants recovered, i.e., 145. According to Detective Franks, based on the type of harvest operation he observed in Unit No. 6 and the amount of marijuana recovered, defendant's operation conservatively could have yielded six harvests a year for an annual total of 54 pounds of marijuana.
Fred Hamann, Daniel Sagon, William Tsui, and William Britt, testified on behalf of defendant. Hamann was a medical marijuana patient who ingested marijuana to control the severe pain he suffered following a serious fall. When Hamann was in significant pain, he ingested up to half a pound of marijuana per month. He signed an agreement to join defendant's medical marijuana collective in September 2009. Defendant was the coordinator of the collective, and all the members of the collective were going to share the expenses.
Sagon was a medical marijuana patient who used marijuana to relieve his migraine symptoms. He discussed joining the collective with defendant in September 2009 and thereafter signed a membership agreement that provided that the marijuana was for medical use only and could not be sold to persons who were not members of the collective. Sagon contributed labor to the operation and all the members were to contribute to the costs of the growing operation.
William Tsui was a medical marijuana patient with a physician's recommendation to use marijuana for migraine symptoms. He joined the collective in September 2009. He contributed labor to the operation and understood that once the marijuana was harvested, all the expenses of the operation would be divided among the members.
William Britt was an expert in, inter alia, marijuana cultivation and marijuana dosages. Among other things, he explained that there was no legal definition for a medical marijuana collective, but the Attorney General's guidelines for collectives required that a collective be an association of persons that must be run like a business. According to Britt, marijuana growers often grow more than they need because not all of the plants will mature. As a general rule, growers may plant as many as twice the number of plants they anticipate they will need. Britt opined that the 145 plants recovered from defendant's unit would yield three pounds per harvest and that amount would satisfy the needs of between one and three patients.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney in an information charged defendant in count 1 with cultivation of marijuana in violation of Health and Safety Code section 11358 and in count 2 with possession of marijuana for sale in violation of Health and Safety Code section 11359. Defendant pleaded not guilty.
Prior to trial, defendant filed a motion to dismiss pursuant to Penal Code section 995 , a motion to dismiss pursuant to section 1385, and a motion to suppress evidence and quash the search warrant pursuant to section 1538.5. The trial court denied each of those motions. The trial court also struck as untimely defendant's peremptory challenge filed pursuant to Code of Civil Procedure section 170.6.
All further statutory references are to the Penal Code unless otherwise indicated.
Following trial, the jury found defendant guilty on count 1, cultivation of marijuana, and not guilty on count 2, possession of marijuana for sale. The trial court sentenced defendant to a three-year prison term, but suspended execution of sentence and placed defendant on three-years formal probation.
DISCUSSION
A. Suppression Motion
Defendant contends that the trial court erred when it denied his motion to suppress evidence and quash the search warrant. According to defendant, the information obtained by Detective Henson during his warrantless search of Unit No. 6 should not have been used as a basis for the subsequent search warrant because it was the result of an illegal search. Defendant also contends that the information obtained from McIntosh, the property manager, should not have been used as a basis for the search warrant because it was unreliable.
1. Background
At the hearing on defendant's suppression motion filed pursuant to section 1538.5, the trial court heard the testimony from Detectives Henson and Franks. The trial court also considered the preliminary hearing testimony of McIntosh, who initially had entered defendant's unit and called the police.
Mcintosh's preliminary hearing testimony is summarized above in the Factual Background section.
According to Detective Henson, on November 12, 2009, he was working patrol for the City of Azusa Police Department. At approximately 3:40 p.m., he responded to the McKinley building and spoke with McIntosh. McIntosh explained to Detective Henson that he was investigating a water leak in Unit No. 5 of the building and believed the water was coming from the adjacent Unit No. 6. McIntosh further informed the detective that when he entered Unit No. 6, he found electric wires, "lots of water," and possibly some marijuana. McIntosh also advised Detective Henson that there was no one in the unit during Mcintosh's inspection of it.
As stated above, McIntosh testified that he discovered the flooding and called the police on November 11, 2009.
Based on Mcintosh's information, Detective Henson entered Unit No. 6 to assure that "there was nobody down, and that it was a safe scene." He entered the unit because he believed the "whole situation with the water and the electricity was a tremendous hazard." Inside the unit, Detective Henson "saw wires haphazardly hot-wired into the junction box." He also saw marijuana in plain view. He thereafter telephoned Detective Franks and told him what he had seen inside Unit No. 6.
Detective Chris Franks testified that on November 12, 2009, he spoke with Detective Henson regarding an incident at the McKinley building involving Unit No. 6. Detective Henson informed Detective Franks of the circumstances surrounding the incident at that location, and based on that information, Detective Franks prepared a search warrant. He included in the warrant a statement of probable cause based on the information provided by Detective Henson. Detective Franks then presented the search warrant to a judge by facsimile transmission and telephonic communication. The judge signed the warrant, returned it to Detective Franks by facsimile transmission, and the detective then served it at Unit No. 6. While executing the search warrant at that location, Detective Franks found 145 marijuana plants as part of a growing operation.
The search warrant that Detective Franks prepared, submitted, and executed contained a statement of probable cause that provided in pertinent part as follows: "On November 12, 2009, I spoke to Det. Henson of the Azusa PD regarding the following incident. Det. Henson said he was working patrol and responded to 1535 W. McKinley, Azusa at approximately 1539 Hrs. regarding a water leak. Det. Henson said upon arrival he met with reporting party Gordon McIntosh (626-272-7306), who is the property manager for 1535 W. McKinley, Azusa. Det. Henson said McIntosh advised him he received a call from another tenant in unit #5, regarding water leaking into his rental unit. [¶] Det. Henson said that McIntosh had told him he went into unit #5 and saw water leaking from unit #6 into unit #5. Det. Henson told me McIntosh said he attempted to contact [defendant], who is renting unit #6, via telephone. McIntosh informed Det. Henson that he was unable to reach [defendant]. Det. Henson said McIntosh told him he feared that the water leaking from unit #6 into unit #5 was causing severe damage to the property, he used his master pass key to gain entry. Det. Henson said McIntosh told him when he went into space #6, that he (Mcintosh) had seen 'a bunch' of plants which he believed to be marijuana growing under large high intensity lights and water all over the floor. [¶] Det. Henson said he advised Azusa PD dispatch for additional units. Det. Henson told me that Lt. Bertelson, Cpl. Eldridge, Ofc. Avila and Ofc. Wachowski arrived at his location to assist. Det. Henson said he and the listed Azusa PD officers then entered unit #6 to conduct a safety check due to the high intensity lights, water on the floor and the heightened risk of possible electrical hazard. Det. Henson wanted to make sure no suspects were inside that were injured, may destroy evidence or harm officers, and to identify any possible hazards to property and surrounding complex and persons in those buildings. [¶] Det. Henson said that when he entered unit #6, he saw approximately 80 plants which he believed to be marijuana plants growing in their own separate containers. Det. Henson told me that the marijuana plants were approximately 12 to 18 inches in height. Det. Henson said the marijuana plants were under four high intensity lights. Det. Henson said he saw reflective material on the walls, concentrating the light onto the plants. Det. Henson also said he saw a large amount of water on the floor, which he believed came from a 55 gallon container, Det. Henson said he saw tubing leading to and from the 55 gallon container and attached to a pump. Det. Henson said he also saw wires leading from the lights to a separate small room. Det. Henson said in the small room he had seen the wires attached to electrical boxes, which appeared to be attached to timers. Det. Henson told me he also saw another 55 gallon container which had what appeared as marijuana clippings and trash. [¶] Det. Henson said no persons were located inside of unit #6 and he attempted to secure the location until narcotic detectives could respond."
2. Analysis
Defendant argues that because Detective Henson's warrantless entry into defendant's Unit No. 6 was not based on information demonstrating exigent circumstances, none of the information he obtained while in that unit should have been included in Detective Franks statement of probable cause, as that information had been obtained illegally. According to defendant, Detective Henson did not believe there was an emergency situation inside Unit No. 6 and he knew prior to entering the unit that there was no one inside the unit.
"In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8 [95 Cal.Rptr.3d 652, 209 P.3d 977].) . . . Because a warrantless entry into a home is presumptively unreasonable, the government bears the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry. (Rogers, at p. 1156.)" (People v. Troyer (2011) 51 Cal.4th 599, 605.)
"'[P]olice may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.' (Brigham City v. Stuart [(2006)] 547 U.S. [398,] 400.) '"The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency."' (Mincey v. Arizona (1978) 437 U.S. 385, 392 [57 L.Ed.2d 290, 98 S.Ct. 2408].) '"'There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.'"' (People v. Panah (2005) 35 Cal.4th 395, 465 [25 Cal.Rptr.3d 672, 107 P.3d 790].) On appeal, we uphold the trial court's factual findings if they are supported by substantial evidence, but review independently its determination that the search did not violate the Fourth Amendment. (People v. Rogers, supra, 46 Cal.4th at p. 1157.)" (People v. Troyer, supra, 51 Cal.4th at p. 605.)
"The '"emergency aid exception"' to the warrant requirement 'does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises.' (Michigan v. Fisher [(2009)] 558 U.S. [____,] _____[130 S.Ct. [546,] 548].) Rather, the exception 'requires only "an objectively reasonable basis for believing . . ." [citation] that "a person within [the house] is in need of immediate aid."' (Ibid.) 'We are to approach the Fourth Amendment . . . with at least some measure of pragmatism. If there is a grave public need for the police to take preventive action, the Constitution may impose limits, but it will not bar the way.' (Mora v. City of Gaithersburg (4th Cir. 2008) 519 F.3d 216, 222.)" (People v. Troyer, supra, 51 Cal.4th at pp. 605-606.)
Assuming without deciding that the information obtained by Detective Henson upon entering Unit No. 6 concerning the water and electrical wiring on the floor of that unit was insufficient to support a reasonable belief that someone inside the unit would be in imminent danger of injury, the search warrant nevertheless established probable cause because it was also based on Mcintosh's information. As the first two paragraphs of the statement of probable cause reflect, before Detective Henson entered Unit No. 6, Mcintosh told the detective that because "he feared that the water leaking from [Unit No. 6] into [Unit No. 5] was causing severe damage to the property, he used his master pass key to gain entry [into Unit No. 6]. [W]hen [McIntosh] went into [Unit No. 6], . . . he . . . [saw] 'a bunch' of plants which he believed to be marijuana growing under large high intensity lights and water all over the floor." Standing alone, that information from a percipient witness detailing what appeared to be a growing operation and confirming the likely presence of marijuana in Unit No. 6 constituted "sufficient competent evidence supportive of the magistrates's finding of probable cause" to issue the search warrant. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150.) Thus, even if the information Detective Henson obtained from his warrantless entry into defendant's unit had been excluded from the statement of probable cause, the balance of the information in the statement obtained from McIntosh supported the necessary showing of probable cause.
B. Pretrial Proceedings on Limited Immunity Defense
Defendant contends that because the trial court refused to hear his limited immunity defense, either during the preliminary hearing or at some later point prior to trial, he was denied a substantial right. According to defendant, the denial of that substantial right rendered the ensuing commitment illegal and entitled him to a dismissal of the information. But even if defendant was denied a substantial right prior to trial, he has not and cannot show that he was prejudiced by that denial.
Health and Safety Code section 11362.5, subdivision (d) provides: "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 Compassionate Use Act of 1996 (the CUA) ensures that Californians who obtain and use marijuana for specified medical purposes upon the recommendation of a physician are not subject to certain criminal sanctions. (Health & Saf. Code, § 11362.5.) (Footnote omitted.) Specifically, the CUA provides an affirmative defense to the crimes of possessing marijuana (§ 11357) and cultivating marijuana (§ 11358) for physician-approved personal medical purposes. (§ 11362.5, subd. (d).) [¶] [Subsequently,] the Legislature enacted the Medical Marijuana Program (MMP), one purpose of which was to address issues not included in the CUA so as to promote the fair and orderly implementation of the CUA. (§ 11362.7 et seq.) Among its provisions, the MMP specifically provides an affirmative defense to the crime of transporting marijuana by individuals entitled to the protections of the CUA. (§ 11362.765.)" (People v. Wright (2006) 40 Cal.4th 81, 84-85.) The MMP also recognizes a qualified right to collective and cooperative cultivation of medical marijuana. (Health & Saf. Code, § 11362.775.)In People v. Mower (2002) 28 Cal.4th 457, 473, the Supreme Court explained that a defendant has a right under the CUA to assert a limited immunity affirmative defense in proceedings held prior to trial. "Because the grant of limited immunity from prosecution in [Health and Safety Code] section 11362.5[, subdivision] (d) operates by decriminalizing conduct that otherwise would be criminal, a defendant moving to set aside an indictment or information prior to trial based on his or her status as a qualified patient or primary caregiver may proceed under Penal Code section 995. To prevail, a defendant must show that, in light of the evidence presented to the grand jury or the magistrate, he or she was indicted or committed 'without reasonable or probable cause' to believe that he or she was guilty of possession or cultivation of marijuana in view of his or her status as a qualified patient or primary caregiver. (Pen. Code, § 995, subd. (a)(1)(B), (2)(B).) (Footnote omitted.) '"'Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. 'Reasonable and probable cause' may exist although there may be some room for doubt."' (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 56-57 , quoting People v. Nagle (1944) 25 Cal.2d 216, 222 .) Of course, in the absence of reasonable or probable cause to believe that a defendant is guilty of possession or cultivation of marijuana, in view of his or her status as a qualified patient or primary caregiver, the grand jury or the magistrate should not indict or commit the defendant in the first place, but instead should bring the prosecution to an end at that point."
Health and Safety Code section 11362.775 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 [Health and Safety Code s]ection[s] 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570."
Although a defendant may have a right to present a limited immunity defense prior to trial at, for example, either the preliminary hearing or by way of a section 995 motion to dismiss, he or she is not entitled to relief based on a claimed denial of that right unless he or she can show that he or she was prejudiced by that denial. "'[i]rregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.'" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 139.) Moreover, this rule applies with equal force to proceedings that occur after the preliminary hearing, but before trial. (Ibid.)
Here, even though defendant did not have a hearing on his evidence in support of his limited immunity defense prior to trial, he nevertheless was allowed to present his evidence in support of that defense to the jury at trial. The jury, however, rejected defendant's claimed defense as to the cultivation charge after hearing all of his witnesses and considering all of his documentary evidence—it found that defendant had not proved that he was cultivating marijuana as part of a valid collective or that the amount of marijuana he was cultivating was not reasonably related to the medical needs of the collective. Thus, even assuming defendant was prevented from presenting his limited immunity defense prior to trial, he suffered no prejudice because that defense was ultimately rejected by the jury and the trial court did not set aside the verdict. (§ 1181.) Given the jury's adverse determination on defendant's limited immunity defense under the medical marijuana laws, there was no reasonable likelihood that defendant would have obtained a more favorable result on that defense had it been heard by the trial court prior to trial.
C. Preemptory Challenge
Defendant contends that the trial court erred when it denied as untimely his motion to disqualify filed pursuant to Code of Civil Procedure section 170.6. In making that contention, defendant assumes that an order denying a motion to disqualify under section 170.6 based on timeliness is directly appealable. As explained below, however, appellate courts have repeatedly held that such orders are not directly appealable and must be reviewed, if at all, by a writ of mandate sought within 10 days of notice of the order.
"As set forth in Code of Civil Procedure section 170.3, subdivision (d): 'The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding.' As we have repeatedly held, the statute means what it says: Code of Civil Procedure section 170.3, subdivision (d) provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory. (People v. Hull (1991) 1 Cal.4th 266, 271-276 [2 Cal.Rptr.2d 526, 820 P.2d 1036]; People v. Williams (1997) 16 Cal.4th 635, 652 [66 Cal.Rptr.2d 573, 941 P.2d 752] [where defendant failed to seek review via writ of mandate, his 'statutory judicial disqualification claim is not properly before us on this automatic appeal following a judgment of death']; People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 802 [123 Cal.Rptr.2d 31, 50 P.3d 743]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 50-51 [17 Cal.Rptr.3d 710, 96 P.3d 30].)" (People v. Panah, supra, 35 Cal.4th at p. 444.)
In light of the clarity of the statutory language and the case law on this issue, we cannot on appeal review the issue of whether the trial court correctly applied the timing provisions of Code of Civil Procedure section 170.6, subdivision (a)(2). And, although defendant suggests that the denial of his disqualification motion also violated due process, his arguments focus solely on the timing issue under the language of the statute and do not address the separate issue of whether the denial of his motion violated his due process right to an impartial judge. (See People v. Panah, supra, 35 Cal.4th at p. 445, fn. 16 ["We have observed that, notwithstanding the exclusive-remedy provision of Code of Civil Procedure section 170.3, 'a defendant may assert on appeal a claim of denial of the due process right to an impartial judge.' [Citation.] Although defendant alluded to the due process clause in his motion below and on appeal here, his argument here is focused on whether the trial court complied with the statute and he makes no separate due process argument"].) We therefore dismiss defendant's challenge to the order denying his disqualification motion.
D. Prosecutorial Misconduct
Defendant raises three instances of prosecutorial misconduct during closing argument: misstating the medical marijuana laws; referring to facts not in evidence; and appealing to the passions of the jurors. The Attorney General counters that defendant has forfeited his misconduct claims by failing at trial to object to the alleged instances of misconduct and to request curative admonitions during closing argument.
"'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40].) ([People v.] Samayoa [(1997)] 15 Cal.4th [795,] 841.) [¶] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. (People v. Arias (1996) 13 Cal.4th 92, 159 [51 Cal.Rptr.2d 770, 913 P.2d 980]; People v. Noguera (1992) 4 Cal. 4th 599, 638 [15 Cal. Rptr. 2d 400, 842 P.2d 1160].) In addition, failure to request the jury be admonished does not forfeit the issue for appeal if '"an admonition would not have cured the harm caused by the misconduct."' (People v. Bradford (1997) 15 Cal.4th 1229, 1333 [65 Cal.Rptr.2d 145, 939 P.2d 259], quoting People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610] (hereafter Price).)Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' (People v. Green (1980) 27 Cal.3d 1, 35, fn. 19 [164 Cal.Rptr. 1, 609 P.2d 468] (hereafter Green); People v. Pitts (1990) 223 Cal.App.3d 606, 692 ; People v. Lindsey (1988) 205 Cal.App.3d 112, 116, fn. 1 ; see also People v. Noguera, supra, at p. 638 [must request curative admonition 'if practicable'].)" (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
During the prosecutor's closing argument, defendant's trial counsel did not make any objections or requests for curative admonitions. We must therefore apply the general rule of forfeiture, unless defendant demonstrates that objections would have been futile, admonitions would not have cured the harm caused by the misconduct, or it was impractical to request an admonition. On appeal, defendant makes no showing as to any of the cognizable excuses for failing to make a timely objection or request for admonition that would render the general forfeiture rule inapplicable here. His prosecutorial misconduct claims are therefore subject to that rule, and he has forfeited those claims.
E. Instructional Error
Defendant maintains that the trial court erred by instructing the jury with CALJIC No. 12.24.1. He argues that the challenged instruction improperly advised the jury that he had the burden of proof on his medical marijuana affirmative defense. Defendant, however, did not raise the burden of proof issue with the trial court, thereby depriving both the trial court and the prosecution of the opportunity to address or correct the issue.
"Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 [20 Cal.Rptr.2d 638, 853 P.2d 1093] (Saunders).)The reason for this rule is that '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' (People v. Vera (1997) 15 Cal.4th 269, 276 [62 Cal.Rptr.2d 754, 934 P.2d 1279] (Vera); see Saunders, supra, 5 Cal.4th at p. 590.) '[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.' (People v. Kennedy (2005) 36 Cal.4th 595, 612 [31 Cal.Rptr.3d 160, 115 P.3d 472].)" (People v. French (2008) 43 Cal.4th 36, 46.) The forfeiture rule specifically applies to a defendant who fails to object to a jury instruction on the grounds urged on appeal. "Defendant's failure to object to the instruction below, or the prosecutor's argument, forfeits the claim on appeal. (People v. Hillhouse (2002) 27 Cal.4th 469, 504 [117 Cal.Rptr.2d 45, 40 P.3d 754]; People v. Prieto (2003) 30 Cal.4th 226, 259-260 [133 Cal.Rptr.2d 18, 66 P.3d 1123]." (People v. Virgil (2011) 51 Cal.4th 1210, 1260.)
Here, defendant did not object to CALJIC No. 12.24.1 on the grounds that it misstated the burden of proof on defendant's medical marijuana defense. Had defendant done so, the trial court could have addressed the issue and cured any alleged defect, assuming arguendo the instruction was defective as now claimed. By failing to object or request curative admonitions during oral argument, defendant forfeited his claim of instructional error on appeal.
F. Ineffective Assistance of Counsel
Defendant bases his claim of ineffective assistance of counsel on three claimed instances of ineffective assistance during the preliminary hearing, as well as three additional claimed instances during trial. According to defendant, the cumulative effect of these multiple instances of ineffective assistance deprived him of a fair trial.
"'The law governing defendant's claim [of ineffective assistance of counsel] is settled. "A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.'" (People v. Wharton (1991) 53 Cal.3d 522, 575 [280 Cal.Rptr. 631, 809 P.2d 290], quoting People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839], italics in original.) It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.] We have summarized defendant's burden as follows: "'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."'"[Citation.] [¶] Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: "'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.'" [Citation.]' (People v. Lucas (1995) 12 Cal.4th 415, 436-437 [48 Cal.Rptr.2d 525, 907 P.2d 373].) If the record on appeal '"'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected,"' and the 'claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.' (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)" (People v. Vines (2011) 51 Cal.4th 830, 875-876.)
As to each of the six instances of claimed ineffective assistance, the record does not reflect why defendant's trial counsel acted or failed to act as she did. Moreover, as to each such instance, defendant fails to demonstrate that there was no satisfactory explanation for trial counsel's conduct. Thus, the ineffective assistance claims cannot be adjudicated on appeal and must be reviewed, if at all, on a petition for writ of habeas corpus.
G. Substantial Evidence
Defendant contends that the evidence in support of his conviction for cultivating marijuana was insufficient. As defendant reads the verdict, because the jury found him not guilty on count 2—possession of marijuana for sale—it also must have found that he was cultivating marijuana as part of a medical marijuana collective that was immune from criminal liability under the medical marijuana laws. According to defendant, the verdicts on counts 1 and 2 are therefore inconsistent because the jury's favorable finding on his immunity defense as to count 2 should have applied with equal force to the cultivation of marijuana charge in count 1.
"The standard of appellate review for determining the sufficiency of the evidence is settled. '"On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738]; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 99 S.Ct. 2781].)"' . . . Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058 .)" (People v. Wilson (2008) 44 Cal.4th 758, 806.) Thus, to resolve defendant's sufficiency claim, we must review the verdicts on counts 1 and 2 under the forgoing standard. Pursuant to that standard, it is clear that the premise of defendant's argument— i.e., the jury made a favorable finding on his immunity defense on count 2—is false.
"'[T]o establish unlawful possession of narcotics, the evidence must show that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character. [Citations.]' (People v. Hampton (1981) 115 Cal.App.3d 515, 522 .) 'Where the charge is "possession for sale of marijuana" an additional element must be established, i.e., that the possession by the accused was for the purpose or intent of selling the marijuana. [Citation.]' (Weber v. Superior Court (1973) 30 Cal.App.3d 810, 815 .)" (People v. Eckstrom (1986) 187 Cal.App.3d 323, 330-331.)
To establish a defense under the medical marijuana laws, a defendant must show that he and the other members of the alleged collective met the definition of a person or caregiver under the CUA and that the amount of marijuana that he was cultivating on behalf of the alleged collective was reasonably related to the medical needs of the members of that collective. (See People v. Kelly (2010) 47 Cal.4th 1008, 1049 [if a defendant meets the definition of a person or caregiver under the CUA, he or she "may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana reasonably related to meet his or her current medical needs"].)
As noted above, Health and Safety Code section 11362.5, subdivision (d) defines a qualified person as 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." Section 11362.5, subdivision (e) further defines a "primary caregiver" as "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person."
To the extent defendant is claiming that inconsistent verdicts on counts 1 and 2 would require automatic reversal of his conviction on the possession for sale charge, he misperceives the applicable law. "'It is . . . settled that an inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of a substantive offense, effect is given to both.' (People v. Santamaria (1994) 8 Cal.4th 903, 911 [35 Cal.Rptr.2d 624, 884 P.2d 81].)" (People v. Panah, supra, 35 Cal.4th at p. 490.) As the Supreme Court explained in People v. Santamaria, supra, 8 Cal.4th at page 911, "When a jury renders inconsistent verdicts, 'it is unclear whose ox has been gored.' (United States v. Powell [(1984)] 469 U.S. [57,] 65 [83 L.Ed.2d [461,] 469].) The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding 'through mistake, compromise, or lenity . . . (Ibid.) Because the defendant is given the benefit of the acquittal, 'it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted.' (Id. at p. 69 .)" Thus, even if the verdicts on counts 1 and 2 were inherently inconsistent, that inconsistency would not require us to reverse defendant's conviction on count 2.
Moreover, it does not appear that the verdicts on counts 1 and 2 were inherently inconsistent. In this case, the prosecution attempted to establish that defendant possessed the marijuana for sale through the testimony of Detective Franks. But Detective Franks candidly admitted that the typical evidence used to show possession for sale was not present in this case. Specifically, Detective Franks testified that he did not find in Unit No. 6 any of the typical evidence indicating that the marijuana was possessed for sale, such as "pay and owe sheets," scales, or packaging materials. He also admitted that his opinion that the marijuana was possessed for sale was based solely on the amount of marijuana recovered. Based on that evidence, a reasonable trier of fact could have concluded that defendant did not possess the marijuana with the purpose or intent of selling it. Because such intent was a necessary element of the possession for sale charge in count 1, the jury reasonably could have returned a not guilty verdict on that count without reaching the merits of defendant's limited immunity defense.
In addition, based on the evidence concerning cultivation and defendant's limited immunity defense, the jury also could have found defendant not guilty of possession for sale on count 2, while nevertheless finding as to count 1 that defendant had not established that he was cultivating the marijuana as part of a valid medical marijuana collective. In his case, defendant did not establish the amount of marijuana that he or the alleged collective members needed to use on an annual basis, and in the prosecution's case, Detective Franks testified that defendant's growing operation would yield at least 54 pounds of marijuana per year. Moreover, there was evidence that when defendant leased Unit No. 6, he represented in the lease agreement that the purpose of the lease was to store auto parts. And when defendant built a greenhouse in the unit and substantially altered the electrical and plumbing systems, he never notified McIntosh much less sought written permission to make substantial alterations to the leased premises. Based on that evidence, the jury could have doubted the credibility of defendant's medical marijuana defense and reasonably concluded that defendant was growing substantially more marijuana than was reasonably related to the needs of the members of the alleged collective. That conclusion, in turn, would have supported a reasonable inference that defendant was not cultivating the marijuana as part of a medical marijuana collective that was immune from prosecution under the medical marijuana laws. Thus, there was substantial evidence in support of the guilty verdict on count 1.
Defendant did not testify or present any evidence as to the amount of marijuana he needed to satisfy his medical needs. And, of the three members of the alleged collective who testified on defendant's behalf, only Hamann testified as to the amount of marijuana he needed to use per year, i.e. six pounds. Neither Sato nor Tsui testified as to the amount of marijuana they needed for medical purposes. Therefore, even assuming that defendant, Sato, and Tsui needed an amount similar to Hamann for a total annual consumption by the alleged collective of 24 pounds, the testimony of Detective Franks, that the jury presumably accepted, established that defendant was cultivating more than twice the amount of marijuana that the alleged collective needed to service the medical needs of its members.
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DISPOSITION
The defendant's challenge to the trial court's order denying his Code of Civil Procedure section 170.6 disqualification motion is dismissed, and the judgment of conviction is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.