P .v. Avina CA4/3

Filed 2/7/14 P .v. Avina CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047963

v. (Super. Ct. No. 11HF0667)

GUILLERMO AVINA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, W.

Michael Hayes, Judge. Affirmed.

Law Offices of J. David Nick and J. David Nick for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami

Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Guillermo Avina represented himself at trial. The jury found

him guilty of possession of marijuana for sale (Health & Saf. Code, § 11359; all

undesignated section references are to the Health and Safety Code unless otherwise

stated), transportation of marijuana (§ 11360, subd. (a)), and two misdemeanors (Veh.

Code, § 23152, subds. (a) [driving under the influence of alcohol], (b) [driving with .08

or greater blood-alcohol content]). The court sentenced defendant to three years in

prison. On appeal, defendant challenges his felony convictions, contending the trial court

failed to instruct the jury pursuant to sections 11362.765, subdivision (c) and11362.775.

We affirm.

I

FACTS1

On January 19, 2011, at approximately 2:51 a.m., Officer Shawn Preasmyer

stopped defendant’s vehicle in the area of MacArthur Boulevard and Birch for an unsafe

lane change. Upon contacting the driver, defendant, Preasmyer observed objective

symptoms of impairment, including a strong odor of an alcoholic beverage. According to

Preasmyer, the vehicle reeked of marijuana. He arrested defendant for driving under the

influence after defendant performed field sobriety tests and took a breath test.

The officer searched the vehicle and found “some marijuana and a couple

vials of what appeared to be hash oil” near the center console. He also found what he

described as pay/owe sheets with “several hundred” entries. The sheets contained a

number of names and addresses, including addresses from outside California. Preasmyer

also found approximately one pound of marijuana and $1,580 inside the vehicle. He

opined the marijuana was possessed for sale and stated his opinion would not change if

defendant had a valid state-issued medical marijuana card.

1 Because defendant only challenges his felony convictions, the facts

relating to his Vehicle Code violations are set forth summarily and only to the extent they

relate to his felony convictions.

2

Preasmyer remembered defendant saying he had a medical marijuana card

and was a caregiver for HIV and cancer patients. The parties stipulated defendant’s State

of California medical marijuana patient identification card was valid on January 19, 2011.

When he was booked into jail, defendant was asked his occupation and he answered,

“Director of the Slauson Patient Association.”

Detective Elijah Hayward of the narcotic division of the Newport Beach

Police Department was given a hypothetical question that closely tracked the facts

relating to the marijuana, hash oil, money, and pay/owe sheets found in defendant’s

vehicle. Hayward opined the marijuana was possessed for sale. On cross-examination,

Hayward admitted a marijuana collective must keep records of transactions it makes.

Defense

Richard Brumfield, Jr., has throat cancer and posttraumatic stress

syndrome. He has a physician’s recommendation to use medical marijuana, and holds a

State medical marijuana card. Brumfield formed Pacific Coast Wellness and Evolution

Center (PCW) in June 2009, and is its president. PCW is a mutual not for profit medical

marijuana primary caregiver association. Brumfield said that as president of PCW, he

made sure he and defendant were in compliance with state and federal law.

Defendant has been Brumfield’s care provider since January 1, 2010.

Brumfield lived at defendant’s residence in Westminster, along with three other patients.

He lived there for two years without charge. Defendant provided him food, housing, took

him to the hospital when needed, and did not charge him for the marijuana defendant

supplied him. At no time did Brumfield ever see defendant “come home with excessive

money.”

Brumfield recognized all of the addresses on what the detective termed

pay/owe sheets. He said defendant never sent medical marijuana to any of the addresses

and that one of the addresses belonged to Green Country Chiropractic Clinic. Brumfield

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said the Arizona address on one of the alleged pay/owe sheets belonged to a business, an

alternative cancer and treatment center and osteopathic clinic.

On the night defendant was arrested, Brumfield was expecting defendant to

bring home a pound of marijuana. He was shown the marijuana seized that night and

said it was packaged in the same fashion as other marijuana brought to the residence.

Brumfield said smoking marijuana is not good for him because of his throat cancer, so he

uses a process to reduce it to a liquid form.

Michael Delao and his girlfriend lived at defendant’s residence in

Westminster. Delao has been a medical marijuana card holder for 11 years. According

to Delao, defendant has been a caregiver for approximately nine or 10 years, was caring

for Richard Brumfield at the time of the arrest, and was the acting treasurer of PCW.

Carolynn Ornelas is a member of PCW and lived at defendant’s residence

in Westminster, along with Brumfield. Defendant was her caregiver. She said defendant

never sold her marijuana and neither has she ever known him to be a marijuana dealer.

She said defendant’s intentions were to help his patients.

Chezami Veto is defendant’s spouse. She said there were three patients

living at defendant’s residence at the time of his arrest. She confirmed defendant gave

Brumfield food and transported him to doctor appointments and the hospital. She said

she has never known defendant to be a drug dealer.

II

DISCUSSION

In 1996, the electorate enacted section 11362.5, the Compassionate Use Act

(CUA). The CUA was enacted “[t]o ensure seriously ill Californians have the right to

obtain and use marijuana for medical purposes” when the use has been recommended by

a physician in the treatment for illness. (§ 11362.5, subd. (b)(1)(A).) The purpose of the

CUA was to insulate such patients and their primary caregivers from criminal

prosecution. (§ 11362.5, subd. (b)(1)(B).) To that end, subdivision (d) of section

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11362.5, provides that two provisions of the Health and Safety Code—section 11357

[prohibiting possession of marijuana] and section 11358 [prohibiting cultivation of

marijuana]—do not apply to patients who have a physician’s recommendation to use

medical marijuana and the patients’ primary care givers. (§ 11362.5, subd. (b)(1)(B).)

“[T]he [CUA] is a narrowly drafted statute designed to allow a qualified patient and his

or her primary caregiver to possess and cultivate marijuana for the patient’s personal use

despite the penal laws that outlaw these two acts for all others.” (People v. Urziceanu

(2005) 132 Cal.App.4th 747, 772-773.)

Subsequently, when the Legislature found “qualified patients and

designated primary caregivers” had been prevented from obtaining the protections

afforded by the CUA, it enacted the Medical Marijuana Program (MMP) in 2003.

(§ 11362.7 et seq.; Stats. 2003, ch. 875, § 1(a)(2).) In order to remedy that situation and

to “[e]nhance the access to patients and caregivers to medical marijuana through

collective, cooperative cultivation projects” (Stats. 2003, ch. 875, § 1(b)(3)), the MMP

required the State Department of Health Services (§ 11362.7, subd. (b)) to “establish and

maintain a voluntary program for the issuance of identification cards to qualified patients

. . . .” (§ 11362.71, subd. (a)(1).) Subject to the requirements of the MMP (§ 11362.765,

subd. (a)), the Legislature provided immunity to “[a]ny individual who provides

assistance to a qualified patient or . . . designated primary caregiver” (§ 11362.765, subd.

(b)(3)) from “criminal liability under Section . . . 11359 [possession of marijuana for

sale] [ or] 11360 [transportation, sale, furnishing, or administering marijuana] . . . .”

(§ 11362.765, subd. (a).) In addition, the MMP permits qualified patients and their

designated primary caregivers to join together “in order collectively or cooperatively to

cultivate marijuana for medical purposes” without being subject to “state criminal

sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570” based

solely on the collective or cooperative cultivation of “marijuana for medicinal purposes.”

(§ 11362.775, italics added.) The MMP also provides that a primary caregiver is entitled

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to receive reasonable compensation and payment for out-of-pocket expenses incurred in

providing his services, including supplying medical marijuana. (§ 11362.765,

subdivision (c) [“A primary caregiver who receives compensation for actual expenses,

including reasonable compensation incurred for services provided to an eligible qualified

patient or person with an identification card to enable that person to use marijuana under

this article, or for payment for out-of-pocket expenses incurred in providing those

services, or both, shall not, on the sole basis of that fact, be subject to prosecution or

punishment under Section 11359 or 11360”.].)

Defendant was convicted of one count each of possession of marijuana for

sale (§ 11359) and transportation of marijuana (§ 11360, subd. (a)). The parties

stipulated defendant held a valid State of California medical marijuana patient

identification card on the date of his arrest. Additionally, defense evidence

demonstrating defendant was a qualified primary caregiver (§ 11362.5, subd. (e))2 was

unimpeached.

In connection with the transportation of marijuana charge (§ 11360, subd.

(a)), the jury was instructed it could not convict defendant unless it found beyond a

reasonable doubt his possession of the marijuana was unlawful. (CALCRIM No. 2375.)

That instruction further informed the jury that possession authorized by the CUA is

lawful and a primary caregiver may transport marijuana for medical purposes to his

patients. The jury was not instructed, in connection with that charge or the charge of

possessing marijuana for sale (§ 11359), that a primary caregiver may lawfully receive

compensation for supplying a patient with medical marijuana, as provided by section

11362.765, subdivision (c). Neither was the jury instructed in the language of section

2 “For the purposes of this section, ‘primary caregiver’ means the

individual designated by the person exempted under this section who has consistently

assumed responsibility for the housing, health, or safety of that person.” (§ 11362.5,

subd. (e).)

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11362.775, the provision exempting a primary caregiver from criminal liability for

violation of sections 11359 and 11360 based solely on participation in a collective or

cooperative to cultivate medical marijuana. Defendant contends the failure to so instruct

was prejudicial.

“In criminal cases, even in the absence of a request, a trial court must

instruct on general principles of law relevant to the issues raised by the evidence and

necessary for the jury’s understanding of the case.” (People v. Martinez (2010) 47

Cal.4th 911, 953.) “That duty extends to ‘“instructions on the defendant’s theory of the

case, including instructions ‘as to defenses “‘that the defendant is relying on . . . , or if

there is substantial evidence supportive of such a defense and the defense is not

inconsistent with the defendant’s theory of the case.’”’”’ (People v. Gutierrez (2009) 45

Cal.4th 789, 824.)” (People v. Anderson (2011) 51 Cal.4th 989, 996.) We review de

novo whether the trial court erred in failing to instruct on a defense theory. (People v.

Manriquez (2005) 37 Cal.4th 547, 581.)

Defendant’s defense was not inconsistent with the fact that a primary

caregiver may receive compensation for furnishing medical marijuana to his patients

(§ 11362.765, subd. (c)), and patients and primary caregivers may “collectively or

cooperatively . . . cultivate marijuana for medical purposes” without being subject to

“state criminal sanctions” under sections 11359 and 11360 solely on that basis.

(§ 11362.775.) If there was substantial evidence supporting instruction on these

defenses, the court was obligated to so instruct. We find, however, no such substantial

evidence.

The prosecution introduced evidence of what its expert considered were

pay/owe sheets demonstrating defendant was selling marijuana. Although defendant

countered that evidence with Brumfield’s testimony to the effect that he recognized the

addresses on the alleged pay/owe sheets and defendant never sent medical marijuana to

any of the addresses, defendant did not introduce any evidence to the effect that he

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received compensation from any of his patients for providing them medical marijuana as

permitted by section 11362.765, subdivision (c). In fact, the only evidence he introduced

on this issue was to the contrary. Brumfield testified defendant did not charge him for

medical marijuana. And the only other defense witness to testify on this subject said

defendant never charged her for medical marijuana. Consequently, there was no

substantial evidence defendant received compensation for supplying patients with

medical marijuana and thus, he was not entitled to an instruction in the terms of section

11362.765, subdivision (c).

Additionally, the jury was instructed that a caregiver could engage in

cultivation lawfully for purposes of providing medical marijuana to patients.

Accordingly, we find the court did not err in instructing the jury.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

RYLAARSDAM, J.

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