The opinion
Filed 4/29/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B239380
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA067133)
v.
BRYAN EDWARD MITCHELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Hilleri
G. Merritt, Judge. Affirmed as modified.
Kestenbaum, Eisner & Gorin, Alan Eisner and Brad Kaiserman for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Gary A.
Lieberman, Deputy Attorneys General for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of parts III (B) and (C).
I. INTRODUCTION
Defendant, Brian Edward Mitchell, appeals after he was convicted of marijuana
cultivation. (Health & Saf. Code,1 § 11358.) In the published portion of this opinion, we
discuss defendant’s contention he was entitled to the protections of section 11362.775.
Section 11362.775 was adopted pursuant to the Medical Marijuana Program Act.
Defendant entered into two written agreements to grow marijuana every month and sell it
to a for-profit corporation that operated a collective of which he was a member.
Defendant anticipated being paid $50,000 to $60,000 annually for marijuana delivered to
the for-profit corporation. Under these circumstances, defendant may not secure the
immunity provided by section 11362.775. With minor sentencing modifications, we
otherwise affirm.
II. THE FACTS
A. The Formation Of The For-Profit Corporation “Keeping It Medical”
On November 6, 2006, Norman Conway, as incorporator, filed a brief 12-line
articles of incorporation for Keeping It Medical with the California Secretary of State.
The Keeping It Medical corporation was organized as a for-profit enterprise. According
to Mr. Conway, the corporation never ended up “making a profit or anything” and he lost
his house over the business. The other partners in the Keeping It Medical enterprise also
lost money. When asked for the annual gross sales between 2006 and 2010, Mr. Conway
testified, “It varied due to like -- there [were] some union disputes or strikes, I guess,
through the industry, so I believe that sometime in 2008 or -9, we lost probably
60 percent of our normal patient load that would be coming in.” Mr. Conway explained
the only persons who suffered a loss were the four partners who invested in the business.
1
Future statutory references are to the Health and Safety Code unless otherwise
noted.
2
Because he was living off of the refinancing of his house, Mr. Conway testified he took
in “maybe $10,000” per year. However, the partners, according to Mr. Conway, never
actually earned anything: “But we never really earned anything. We kept putting it in
and putting it in and -- there were certain things that happened that were supposed to
come with this which was going to be something, you know, that we could use to
hopefully get us up and running.”
Mr. Conway testified that he was a manager of the “K.I.M. Collective” which was
formed in October, 2006. The acronym K.I.M. is shorthand for Keeping It Medical.
Mr. Conway registered the K.I.M. Collective with the City of Los Angeles Office of
Finance in 2006 under the name Keeping It Medical. Mr. Conway testified the collective
at one time had close to 1,000 members. The Keeping It Medical entity was registered at
3322 Barham Boulevard. City of Los Angeles finance office records described the
Keeping It Medical business as “Retail Sales” and “Professions/Occupations.” An
attorney, David Ericson, provided legal services which led to the incorporation of
Keeping It Medical.
Mr. Conway explained the procedures by which a member could obtain marijuana
from the collective. Mr. Conway testified, “[T]hey would have to show a doctor’s
recommendation and have a valid California I.D., and then we would have to call the
doctor that was on the recommendation and verify it . . . .” Once the identification and
verification process was concluded, a person desiring to purchase marijuana would sign a
membership agreement. Some unidentified collective members received marijuana at no
cost. However, defendant testified he paid money for the marijuana he obtained from the
collective.
Persons other than Mr. Conway or his three partners would collect money from
marijuana purchasers. Mr. Conway’s sole source of income was the proceeds of the
collective. According to Mr. Conway, persons who brought marijuana to the collective
were paid money in exchange. The collective offered classes to members on how to
grow and cook marijuana. When the collective closed due to financial difficulties, none
of its members received bills to pay Mr. Conway back for his losses.
3
B. Defendant Agrees To Provide Marijuana To Keeping It Medical And Receive
$50,000 To $60,000 Annually In Return
In 2002, defendant fractured his spine and was constantly in pain. On September
21, 2007, defendant visited Dr. Wesley Albert. Dr. Albert approved the use of marijuana
for defendant’s symptoms. The approval was granted for one year. There is no evidence
defendant later secured approval from any physician after the expiration of the one-year
time period.
Defendant secured a medical marijuana card. On November 7, 2007, defendant
executed a K.I.M. Membership Agreement. Defendant’s membership agreement states:
he had received a written doctor’s recommendation for a medical condition for which
marijuana provided relief; under “Prop 215 & SB420,” he had the right to cultivate and
have safe and affordable access to medicinal marijuana; his contributions for products he
acquired at K.I.M. Inc. were to be used to ensure the continuing operation of the
collective; “[the] transaction in no way constitute[d] commercial promotion”; the money
he paid helped the collective continue to provide its members with marijuana for their
medical needs; and K.I.M. Inc. was a collective for the marijuana “in possession of all its
members.” The membership agreement concludes: “I understand that by signing this
membership agreement, I declare under penalty of perjury all information to be truthful
and accurate. Also, I will comply with all the guidelines for Prop 215 & SB420.”
Mr. Conway testified defendant would regularly spend time at the Barham
Boulevard establishment. Mr. Conway testified defendant helped with the collective.
Mr. Conway described defendant’s activities at the collective: “Just help us with the
cultivation, or that, you know, introductory grow classes. We had a small grow there so
that patients could see what they were dealing with, what to expect, and what they will
have, and he helped us do that. [¶] And we shared a lot of good books . . . . We would
just hang out, I guess.” Defendant described his role in the collective as that of a patient
who taught a cultivation class. Defendant testified he would bring marijuana to the
collective. But defendant denied taking money from persons he described as patients.
4
Defendant and Mr. Conway began discussing growing marijuana for the
collective. After reviewing the Attorney General’s marijuana guidelines, Mr. Conway
and defendant agreed that it “seemed that the collective was in a need” of more marijuana
for its membership. Defendant testified there was very limited space at the Barham
Boulevard collective for growing marijuana.
As result, defendant met twice with an attorney, Stewart Richlin. Defendant paid
money to Mr. Richlin who provided the following advice: “He informed me that in order
to grow legally for my collective, there were some documents that I could fill out. There
were some certain parameters that I . . . had to stay within, but he advised me
essentially . . . that I was cleared as a patient and a member of the collective to engage in
this activity.” Defendant then secured a number of documents which he believed would
allow him to lawfully grow marijuana.
On August 27, 2009, the Internal Revenue Service issued an employer
identification number for “Herbmetics Inc.” The location of the business is identified as
“717 N. Cahuenga Blvd[.,] Unit B5,” which is defendant’s residence. On August 28,
2009, defendant submitted an application for a seller’s permit to the State Board of
Equalization. The application was submitted under the name of Herbmetics, Inc. and lists
defendant’s residence address as the place of business. Jin Lee is identified as a personal
reference. The application requests the applicant to identify the items that would be sold
and defendant responded, “A Nonprofit Corp. To Cultivate Medical Cannabis.” The
seller’s permit application specifies that the projected monthly gross sales would be
$5,000 (or $60,000 annually). Defendant is listed as the person who would be
maintaining the business records for Herbmetics, Inc. On September 15, 2009, the State
Board of Equalization issued a seller’s permit to Herbmetics, Inc. At trial, despite the
fact he had a seller’s permit, defendant denied ever selling or intending to sell any
marijuana. There is no evidence any marijuana was grown in defendant’s residence after
August 28, 2009, the date he applied for the State Board of Equalization seller’s permit.
Defendant never informed the State Board of Equalization that the address where the
marijuana was being grown was in the City of San Fernando.
5
On September 22, 2009, defendant executed restated articles of incorporation for
Herbmetics, Inc. The corporate name is “Herbmetics, Inc. a California Non-profit
Mutual Benefit Corporation” which has as its purpose, “The specific purpose of this
corporation is to facilitate herbal or natural remedies for chronically ill patron members
who are California residents with HIV, AIDS, chronic pain, chronic spasticity, glaucoma,
arthritis, cancer, migraine, wasting syndrome, and/or other conditions for which licensed
medical physicians may recommend such herbal or natural remedies pursuant to
California Law.” The restated articles of incorporation were executed by defendant in his
capacity as president and secretary of the corporation.
On September 22, 2009, defendant submitted a business license application to the
City of San Fernando. The name of the business was San Fernando Luthier. The business
is described as “manufacturing string instruments” and identified defendant as the owner.
Defendant listed his home address on Cahuenga Boulevard on the application. Ms. Lee is
identified as an emergency contact. The application indicates that no flammable or
hazardous materials will be stored in the premises. The business license application
makes no reference to growing marijuana. City of San Fernando records indicate San
Fernando Luthier operated as a sole proprietorship. City of San Fernando business
records reflect that defendant is the person responsible for the premises. The license
expired on December 31, 2009. Defendant failed to renew the license.
Also on September 22, 2009, defendant applied for a business occupancy permit
from the City of San Fernando. The business is described as “manufacturing of stringed
instruments” and the form contains the same identifying information as on the business
license application. On October 14, 2009, the City of San Fernando issued a business
occupancy permit to defendant. The business occupancy permit allows defendant to
manufacture string instruments including guitars on the premises.
On September 23, 2009, defendant submitted an application for a second seller’s
permit to the State Board of Equalization for a business entitled “San Fernando Luthier.”
Defendant identified himself as the sole owner of San Fernando Luthier. No other person
is identified as a co-owner or partner in San Fernando Luthier. The second application
6
indicates the business address will be 1933 First Street in San Fernando. The second
application makes no reference to the August 28, 2009 application of Herbmetics, Inc.
Defendant’s second State Board of Equalization seller’s permit application responds to
the question as to what would be sold as follows, “Guitars [and] Drums Custom Made.”
Further, the second seller’s permit application lists as a personal reference, Alexander
Behar, who is not otherwise identified during the trial. No reference is made in the
second seller’s permit application to growing marijuana. The projected monthly gross
sales are listed as $5,000 on the seller’s permit application (or $60,000 annually).
Ms. Lee is identified as the person who would be keeping the records for San Fernando
Luthier. The State Board of Equalization issued a seller’s permit to San Fernando
Luthier and defendant on November 1, 2009.
Mr. Conway agreed to have defendant grow marijuana on behalf of the collective.
On November 18, 2009, defendant entered into two agreements with the “K.I.M.
Collective” at the 3323 Barham Boulevard address in Los Angeles. The documents are
entitled, “Caregiving/Cooperative Grower/Provider/Transportation/Designation.”
According to Ms. Lee, these documents were prepared by Mr. Richlin. The two
agreements are the same except one was between Herbmetics, Inc. and Keep it Medical.
There is no evidence Herbmetics, Inc. is a member of the K.I.M. Collective. The second
agreement was between defendant and Keep It Medical. Both agreements are executed
by only Mr. Conway. Both agreements have notary’s acknowledgments attached. One
of the acknowledgments states defendant signed the agreement although in fact he did
not. Defendant is named as a party to one agreement. Herbmetics, Inc. is named as the
party to the other agreement. The agreements state that defendant and Herbmetics, Inc.
would act as a grower for “our” organization. The agreements state that Keeping It
Medical: has 600 “medical cannabis patients” with written recommendations on file; the
“grower/provider” is a collective member authorized to “provide and transport medical
quality cannabis for our organization”; and in particular the “grower/provider” is to
provide marijuana for 100 members of “our organization.” The designation as a grower
was effective immediately and could be terminated on 90 days’ notice. At another point
7
in the agreements, they state: “[T]he only interest we have in common is the independent
and separate desire to assist ill California patients pursuant to the law. The Organization
has the right to inspect and accept or reject any herbal medicine presented hereunder
without obligation. No particular amount of medicine, donation or date is contemplated
hereby. This document is intentionally silent on any price, donation or refund as to
expenses if any, which may be arranged between the Organization and you, to be
determined on a case by case basis, as per California law.” According to Mr. Conway,
the agreements were signed in front of a notary public.
In 2010, Mr. Conway testified there was between 300 to 600 members of the
collective. But in the six-month period after December 2009 or January 2010,
approximately 300 members visited the collective. At another point while testifying,
Mr. Conway stated the collective had “at least thousand” members. When cross-
examined, Mr. Conway admitted that in the six months after December 2009 or January
2010, “only . . . about 300” members of the collective were coming in and “getting”
marijuana. Then Mr. Conway changed his testimony and stated during that six-month
time period “somewhere between 100 to 200” members of the collective were purchasing
marijuana. Mr. Conway testified that defendant was only going to grow marijuana for
100 collective members. Mr. Conway testified at one point that defendant began growing
marijuana for the collective in October or November 2009. Defendant was obligated to
produce marijuana for the collective and its patients. Mr. Conway admitted defendant
was to be paid money in exchange for the marijuana. Mr. Conway testified that defendant
was not the only one who was providing marijuana to the collective. Later while
testifying, Mr. Conway stated defendant never provided the collective with any
marijuana.
Mr. Conway testified that “other” members of the collective continued to bring in
“leftover medication.” When asked how many collective members brought in marijuana,
Mr. Conway testified, “It just depended on the various months.” Mr. Conway testified
the other collective members were reimbursed for the marijuana they had provided:
“Normally they would donate it, and then at the end of the week or whenever, they could
8
be compensated for it based on whenever that the patients had, you know, deemed it to
be.” Later, when cross-examined, Mr. Conway admitted, as noted, that collective
members who provided marijuana were paid money. Because defendant never provided
any marijuana, Mr. Conway testified the collective ceased operations in May or June,
2010.
C. Defendant Builds The Marijuana Growing Facility
Defendant then began to find a location to grow marijuana. Defendant would
discuss with the potential lessors his intention to grow marijuana for his collective. On
September, 10, 2009, defendant and Herbmetics, Inc. paid a security deposit to the
property owner, Bassily Kamar, in the sum of $5,000 for the premises at 1933 First Street
in the City of San Fernando. Ms. Lee gave the check to Mr. Kamar. Defendant then built
out the space in order to grow marijuana.
Tim McBride helped defendant construct the marijuana growing facility.
According to Mr. Conway, Mr. McBride would help out at the collective and work on
guitars and drums. Defendant and Mr. McBride met at the collective. Defendant
described Mr. McBride as a “patient gardener” who performed marijuana gardening
duties at the small in-house collective garden. Mr. McBride and defendant discussed
using open space in the First Street premises for a guitar manufacturing shop. (We will
provide further background about the abortive guitar manufacturing venture later in this
opinion.) Mr. McBride stopped assisting in the construction in mid-December, 2009.
Mr. McBride was to be compensated for his work with the marijuana growing facility.
Defendant purchased lights, soil for the plants, fans to cool the lighting, and air-
conditioning for use in the area where plants were grown. In addition, in order to create
three separate rooms in the space where marijuana would be grown, defendant purchased
lumber. Defendant described his purchases as expensive.
9
D. The Police Discover Defendant’s Marijuana Growing Operation
On January 28, 2010, Officer Jorge Cervantes of the San Fernando Police
Department arrived at the premises rented by defendant at 1933 First Street. Officer
Cervantes went to the business in response to a citizen complaint indicating a possible
break-in at the 1933 First Street address had occurred. The windows for the premises
were covered with a “black plastic tarp-type” of material. Officer Cervantes saw a
broken sectional door and glass. The sectional door had been forced open.
Inside the premises, the investigators found “man-made little make shift” rooms
divided by tarps. Officer Cervantes saw numerous marijuana plants in various stages of
growth in the different rooms. While testifying, Officer Cervantes described the area
where marijuana plants were being grown as being one and one-half times the size of the
courtroom. Without objection, the trial court described the courtroom as being 40 feet
long and 39 feet wide.
In addition to the marijuana, Officer Cervantes saw extensive heating and cooling
equipment including fans, ventilation ducts, irrigation systems and transformers. The
fans in the premises are used for several purposes. The fans kept the temperatures down
and carbon dioxide moving throughout the growing area. In the grow areas there were
carbon dioxide generators. In addition, there was an air scrubber or carbon filter which
conceals the smell of marijuana. The use of such air filters in marijuana grow operations
is common. There were 1,000-watt bulbs in the building. Also, there were ballasts
which were essential for the operation of the thousand watt bulbs. Throughout the grow
areas, there were air ducts to move air all the way through the premises. Growing
indoors is more profitable than outdoors because the elements can be controlled.
There were 22 so-called “grow lights” and 5 fluorescent or metal halide lights on
the premises. The lighting extended throughout the growing areas. Officer Cervantes
also saw work benches and bottles of plant nutrients. In terms of the materials on one
bench, defendant described them as follows: “[T]hey are all chemicals. They are all
nutrients that I used for . . . plant food. This is [the] two main chemicals, and then, you
10
know, there’s like 25 or so other different small nutrients, hormones and things that you
use to grow.” In the main aisle of the premises, there were four fully grown plants which
were five feet tall. Further, there were calendars on the premises. The calendars kept
track of the growing schedule for the plants.
In the east growing area, there were 42 marijuana plants that were approximately 5
feet tall. In the nursery area of the premises, there were five fully grown plants. These
larger plants in the nursery area were approximately five feet tall. Also in the nursery
area were 86 small plants which ranged in size from 11 and 12 inches in height. These
86 smaller plants were described by defendant as “clones” which is the room where the
growing process commences. These plants were kept under lights 24 hours per day.
Officer Cervantes described these plants as clones. Defendant described the purpose and
function of the nursery area thusly: “The nursery is where I kept large mother plants, as
various experts have described it, and cut small branches from them, dipped them in . . . a
rooting hormone, put them in a high humidity little tray and add nutrients so that they
will sprout roots. That’s how you make the plants.”
The next growing area identified by defendant as the “vegetative growth” area
which he described as follows, “The next phase is the vegetative growth stage where you
take them from the nursery, the small plants, you put them in a pot, essentially, and give
them light, food, and some love, and they get bigger, grow bigger root systems . . . .” In
the vegetative growth area, defendant testified that the minimum light-cycle was 18 hours
of light. In the vegetative growth room, there were six 1,000 watt lights.
Officer Cervantes described the remaining room as the main grow room. There
were 70 fully grown marijuana plants which were up to 5 feet tall. Defendant described
the area as follows: “That is the flowering area. That is where the full cannabis
medication is produced from the plant. [¶] . . . In this flowering area, you take the plants
from vegetative and install them here and essentially shut the lights off on them to make
them think its fall, it’s time to reproduce.” In flowering or main grow room, the light
cycle was 12 hours on and 12 hours off. Defendant testified there were sixteen 1,000-
11
watt lights in the area described as the “main grow” or “flowering” area. When
testifying, defendant admitted that he was responsible for the entire cultivation.
Part of defendant’s growing operation consisted of the use of mother plants. In
defendant’s grow operation, there were so-called mother plants which were
approximately five feet high. Clippings were taken from those plants and placed in rock
wool to begin growing. These clippings were referred to as the “clones of the mother
plants” and were under lights for 18 or 24 hours a day.
Officer Cervantes testified after the burglary was discovered, defendant arrived at
the premises. Defendant admitted he was the owner and responsible person for all the
property inside the building. Defendant never said the marijuana belonged to a collective
or that he was working in conjunction with anybody else. Defendant said he spent
$1,600 per month for electricity. After walking through the premises, defendant said
approximately $10,000 worth of marijuana was stolen during the burglary.
Officer Cervantes did not see any: guitars; lutes; guitar strings; drums; wood
being crafted for musical instruments; or any wood-cutting materials. However,
defendant identified a bench that he built which was to be used by the “San Fernando
Luthier and Stringed Instrument Manufacturing Business.” The bench takes up only a
very small portion of the floor space in the premises. Defendant had discussed opening
such a business with Mr. McBride. However, the guitar and stringed instrument business
never got “off the ground.” Defendant admitted it was fair to say that the musical
business never even got started. By mid-December 2009, it was clear nothing was going
to be happening with the guitar business. Defendant testified why his business license
application failed to indicate marijuana would be grown on the premises. As noted, the
application referred to the name of the business as “San Fernando Luthier” and made no
reference to growing marijuana. Defendant testified: “As it was explained to me, my
patient garden isn’t a business. San Fernando Luthier was the only for-profit business
that was going to be occupying this space.” Mr. McBride’s name is not mentioned on
any of the City of San Fernando documents. Defendant claimed he had no effective way
of contacting Mr. McBride any further.
12
As noted, defendant arrived at the marijuana growing facility on January 28, 2010,
after the police had arrived. Defendant presented his medical marijuana identification
card and led the investigators throughout the area where marijuana was being grown.
Defendant presented documents indicating he was cultivating marijuana for the
collective. Defendant discussed the issue of compensation for growing the marijuana
with Officer Cervantes. Defendant testified, “I told the officer that I had been advised
that I was allowed to keep $50,000 for myself for my contributions to the collective
garden.” Officer Cervantes described defendant’s statement about being compensated for
growing marijuana, “He said that he was only allowed to keep $50,000 a year for his
contributions to the medical marijuana dispensaries.” (Defendant denied saying he
intended to sell marijuana to a dispensary.) Defendant described his plan, “The plan was
to cultivate for my collective and to be compensated for my time.”
Officer Cervantes described defendant as cooperative throughout the process
during which the marijuana grow operation was disassembled and the plants seized
pursuant to a search warrant. Defendant helped disassemble the marijuana growing
facility. Officer Cervantes and defendant discussed the marijuana grow operation.
Defendant said that he had been cultivating marijuana for about five years but only in San
Fernando since October, 2009. Defendant denied doing so with any other person.
Defendant said he dispensed marijuana only to marijuana dispensaries. Defendant made
it clear he did not distribute or dispense marijuana to patients but only to dispensaries.
Defendant never paid any taxes nor filed tax return for 2009 for any of his entities.
Defendant only filed personal income tax returns for 2009. Throughout the period of
time defendant was building his marijuana grow operation, he had no other income. At
one point defendant stated it was his intention to earn up to $50,000 per year from
marijuana transactions. As noted, the two State Board of Equalization seller’s permits
indicate Herbmetics, Inc. or defendant was expected to earn $60,000 annually each.
Defendant testified he earned no money from his marijuana growing venture, “It would
have been nice to earn one dollar from my work that I did in the grow house, but we
didn’t earn any.” Defendant then denied expecting a certain amount from his marijuana
13
growing activities. But defendant testified, “I was expecting to be paid for my
efforts . . . .” Defendant testified: “I expected to be paid. I didn’t know what or how or
how much or when.” Defendant expected to also be reimbursed for his expenses which
included setting up the grow facility and time spent gardening. Defendant admitted his
work at the San Fernando marijuana growing facility was his livelihood at that time. And
defendant admitted that it would continue to be his livelihood in terms of providing
money with which to live. When cross-examined, defendant refused to describe the
value of the marijuana he would be growing.
E. Opinion Testimony
Detective Eric Bixler of the Los Angeles Police Department testified concerning
the potential value of defendant’s marijuana growing operations. The police reports in
this case indicated that twenty-two 1,000-watt lights were seized inside defendant’s
growing area. As a general rule, in Detective Bixler’s opinion, twenty-two 1,000-watt
lights would produce 1,100 grams of dried manicured product every 60 days. The 60-day
time frame is the growing cycle for marijuana. Thus, 22 lights would produce annually
24,200 grams or 319 pounds of dried, manicured product. The retail value of marijuana
produced in such a grow operation would be $2.9 million annually. The wholesale value,
calculated on the basis of the price being paid by marijuana dispensaries, would be
$3,500 per pound. At $3,500 per pound, the annual income to a marijuana grower
utilizing twenty-two 1,000-watt lights would be $1,116,500.
Defendant relied upon the testimony of Christopher Conrad, an author, newspaper
publisher and hashish and marijuana museum curator. Mr. Conrad assumed that only
sixteen 1,000-watt lights were used to illuminate flowering plants. In his view, the
typical yield of marijuana would be 7,264 grams of marijuana every 60 days. In
Mr. Conrad’s view, very few growers should expect to get 1,100 grams per 1,000-watt
light every 60 days.
14
Detective Bixler testified in rebuttal. Detective Bixler calculated the annual yield
based upon the use of sixteen 1,000-watt lights. Detective Bixler calculated the annual
yield of marijuana from sixteen 1,000-watt lights as 424 pounds. The wholesale price of
424 pounds marijuana is $114,000. The retail value of the marijuana is $2.1 million.
Detective Bixler’s opinion concerning the yield from 1,000-watt lights was premised
upon his interviews of thousands of arrestees. Detective Bixler testified: “The thousands
of people I’ve arrested for the cultivation of marijuana, possession for sales of marijuana,
all attribute that they get at least this, at least a thousand grams of dried, manicured
product every 60 days. So this is common knowledge. The only time I have heard
different is from defense experts.”
III. DISCUSSION
A. Sections 11362.5 And 11362.7 Et Seq.
Defendant contends he is entitled to rely on the defenses created by section
11362.775. Before discussing why section 11362.775 does not apply to this case, it is
appropriate to discuss the development of defenses to California’s marijuana cultivation
statute, section 11358.2 As our Supreme Court has explained, this is a defense only to
California law. Marijuana cultivation as occurred here is a federal felony and criminal
liability extends not merely to defendant but to those who aided and abetted him in his
growing activities. (21 U.S.C. § 801 et seq.; City of Riverside v. Inland Empire Patients
Health & Wellness Center, Inc. (2013) 56 Cal.4th 729,738-339 (City of Riverside); Ross
v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 927 (Ross).)
2
Section 11358 states, “Every person who plants, cultivates, harvests, dries, or
processes any marijuana or any part thereof, except as otherwise provided by law, shall
be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code.”
15
In 1996, the voters adopted section 11362.5, subdivision (d) which 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.” Our Supreme
Court has described the section 11362.5: “as a narrow measure with narrow ends”; ‘“a
narrowly drafted statute’” (People v. Mentch (2008) 45 Cal.4th 274, 286, fn. 7 (Mentch);
and modest in terms of its goals. (City of Riverside, supra, 56 Cal.4th at p. 744.) When
approved by the voters, section 11362.5 was not intended to decriminalize marijuana on a
wholesale basis nor eviscerate this state’s marijuana laws. (Mentch, supra, 45 Cal.4th at
p. 286, fn. 7; People v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773.) Our Supreme
Court described the views of the proponents of section 11362.5, ‘“[T]he proponents’
ballot arguments reveal a delicate tightrope walk designed to induce voter approval,
which we would upset were we to stretch the proposition's limited immunity to cover that
which its language does not.’” (Ross, supra, 42 Cal.4th at p. 930, quoting People v.
Galambos (2002) 104 Cal.App.4th 1147, 1152.)
In 2003, the Legislature enacted the Medical Marijuana Program Act which
contains section 11362.775, the statutory defense asserted by defendant. (Stats. 2003, ch.
875, § 2, pp. 6431-6432.) Our Supreme Court described the overall purpose of the
Medical Marijuana Program Act: “When it later adopted the [Marijuana Program Act],
the Legislature declared this statute was intended, among other things, to ‘[c]larify the
scope of the application of [section 113652.5] and facilitate the prompt identification of
qualified [medical marijuana] patients and their designated primary caregivers’ in order
to protect them from unnecessary arrest and prosecution for marijuana offenses, to
‘[p]romote uniform and consistent application of [section 113652.5] among the counties
within the state,’ and to ‘[e]nhance the access of patients and caregivers to medical
marijuana through collective, cooperative cultivation projects’ (Stats. 2003, ch. 875, § 1,
subd. (b), pp. 6422, 6423).” (City of Riverside, supra, 56 Cal.4th at p. 744.) Yet, our
Supreme Court characterized the entirety of the Medical Marijuana Program Act, which
16
includes section 11362.775, as limited and specific. (City of Riverside, supra, 56 Cal.4th
at p. 745; see Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 982.) In addition,
our Supreme Court described the new defenses provided by the Medical Marijuana
Program Act as “additional narrow medical exceptions” to sections 11359 and 11360.
(Ross, supra, 42 Cal.4th at p. 929, fn. 3.) Also, our Supreme Court has explained,
“[While the [Medical Marijuana Program Act] ‘does convey additional immunities
against cultivation and possession for sale charges to specific groups of people, it does so
only for specific actions; it does not provide globally that the specified groups of people
may never be charged with cultivation or possession for sale.’” (City of Riverside,
supra, 56 Cal.4th at p. 748 quoting Mentch, supra, 45 Cal.4th at p. 290.) Our Supreme
Court has further described section 11362.5 and the Medical Marijuana Program Act as
collectively being of limited reach. (City of Riverside, supra, 56 Cal.4th at p. 749; see
Maral v. City of Live Oak, supra, 221 Cal.App.4th at p. 982.) Our Supreme Court has
stressed that neither section 11362.5 nor the Medical Marijuana Program Act has created
a “‘broad right to use marijuana without hindrance nor inconvenience.’” (City of
Riverside, supra, 56 Cal.4th at p. 753; Ross, supra, 42 Cal.4th at p. 928.)
We now turn to the limited immunities available under section 11362.5,
subdivision (d). Defendant does not argue he could assert a defense under section
11362.5, subdivision (d). And with good reason because he does not fit within the
exemptions from criminal culpability in section 11362.5, subdivision (d)3 The staggering
3
Section 11362.5 states in its entirety: “(a) This section shall be known and may
be cited as the Compassionate Use Act of 1996. [¶] (b)(1) The people of the State of
California hereby find and declare that the purposes of the Compassionate Use Act of
1996 are as follows: [¶] (A) To 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 cancer,
anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other
illness for which marijuana provides relief. [¶] (B) To 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. [¶]
(C) To encourage the federal and state governments to implement a plan to provide for
17
quantity of marijuana he possessed (including that which was stolen during the burglary)
exceeded that allowable amount under section 11362.5, subdivision (d). Under section
11362.5, subdivision (d), the maximum marijuana that may be possessed is that
reasonably related to the user’s medical needs. (People v. Trippet (1997) 56 Cal.App.4th
1532, 1549 [“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.”]; see People v. Kelly (2010) 47 Cal.4th 1008, 1023-1024.) In
addition, defendant did not qualify as a “primary caregiver” within the meaning of
section 11362.5, subdivision (e). (Mentch, supra, 45 Cal.4th at p. 283 [‘“For a person to
be a qualified primary caregiver, he or she must be “designated” as such by a qualified
patient, and must have “consistently assumed responsibility” for the qualified patient’s
“housing, health, or safety.’”’]; People v. Mower (2002) 28 Cal.4th 457, 475 [same].)
In terms of the Medical Marijuana Program Act, its principal defenses do not
apply to defendant. The most extensive set of defenses are found in section 11362.765,
subdivision (a) which states in part, “Subject to the requirements of this article, the
individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal
liability under Section . . . 11358. . . . However, nothing in this section shall authorize
the individual to smoke or otherwise consume marijuana unless otherwise authorized by
this article, nor shall anything in this section authorize any individual or group to
the safe and affordable distribution of marijuana to all patients in medical need of
marijuana. [¶] (2) Nothing in this section shall be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers others, nor to condone the
diversion of marijuana for nonmedical purposes. [¶] (c) Notwithstanding any other
provision of law, no physician in this state shall be punished, or denied any right or
privilege, for having recommended marijuana to a patient for medical purposes. [¶] (d)
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. [¶] (e) 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.”
18
cultivate or distribute marijuana for profit.” 11362.765, subdivision (b)4 lists a series of
defenses, none of which applies to defendant. 11362.765, subdivision (b)(1) involves
possession for personal use. As in connection with section 11362.5, subdivision (d), the
quantity of marijuana on defendant’s premises, including that taken during the burglary,
exceeded the amount reasonably necessary for defendant’s personal needs. (People v.
Wayman (2010) 189 Cal.App.4th 215, 222-223 [under § 11362.765, subdivision (b)(1),
amount of marijuana limited that reasonably related to a patient’s needs].) Section
11362.765, subdivision (b)(2) does not apply to defendant as it applies only to a
designated caregiver. There is no evidence defendant meets the aforementioned standard
of a primary caregiver. As to section 11362.765, subdivision (b)(3), there is no evidence
defendant, in growing the marijuana in San Fernando, provided assistance to the
enumerated persons in administering or growing marijuana. Finally, section 11362.765,
subdivision (c)5 relating to compensation for actual expenses and services has no
application to defendant as it only applies to violations of section 11359 and 11360.
4
Section 11362.765, subdivision (b) states: “(b) Subdivision (a) shall apply to all
of the following: [¶] (1) A qualified patient or a person with an identification card who
transports or processes marijuana for his or her own personal medical use. [¶] (2) A
designated primary caregiver who transports, processes, administers, delivers, or gives
away marijuana for medical purposes, in amounts not exceeding those established in
subdivision (a) of Section 11362.77, only to the qualified patient of the primary
caregiver, or to the person with an identification card who has designated the individual
as a primary caregiver. [¶] (3) Any individual who provides assistance to a qualified
patient or a person with an identification card, or his or her designated primary caregiver,
in administering medical marijuana to the qualified patient or person or acquiring the
skills necessary to cultivate or administer marijuana for medical purposes to the qualified
patient or person.”
5
Section 11362.765, subdivision (c) states, “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.”
19
The other limited defense of consequence to our case created by the Medical
Marijuana Program Act is section 11362.775 which states, “Qualified patients, persons
with valid identification cards, and the designated primary caregivers of qualified patients
and persons with identification cards, who associate within the State of California in
order collectively or cooperatively to cultivate marijuana for medical purposes, shall not
solely on the basis of that fact be subject to state criminal sanctions under
Section . . . 11358 . . . .” (Italics added.) This defense is limited, as set forth in the
highlighted language, to potential criminal liability based solely on the fact the accused
engaged in the collective or cooperative marijuana cultivation. Defendant has not been
convicted of any crime “solely because” of his collective or cooperative marijuana
cultivation. Here, defendant operated, by himself, a sophisticated marijuana growing
operation, for which he expected potentially to be paid $50,000 to $60,000 per year.
Defendant expected to live off of the income from his marijuana growing venture and to
be compensated for all of his expenses. The amount of marijuana he anticipated growing
exceeded any quantity that would legally be for his personal medical use. There is no
evidence he had any caregiver relationship with any other person in the collective.
Defendant commenced his marijuana growing operations only after entering into two
written notarized contracts prepared by an attorney with a for-profit corporation, Keeping
It Medical. We are in accord with the argument of the Attorney General that defendant’s
broad construction of section 11362.775 has no merit.
Our analysis of the limited scope of section 11362.775 is consistent with that in
Mentch, supra, 45 Cal.4th at page 292 concerning section 11362.765, subdivisions (a)
and (b)(3). (See fn. 4, supra.) Here is how our Supreme Court analyzed portions of
section 11362.765, subdivision (b)(3) relating to administering, advising and counseling
qualified marijuana users: “[A]s relevant here, subdivision (b)(3) of section 11362.765
grants immunity to a specific group of individuals—those who assist in administering
medical marijuana or acquiring the skills necessary to cultivate it—for specific conduct,
namely, assistance in the administration of, or teaching how to cultivate, medical
marijuana. This immunity is significant; in its absence, those who assist patients or
20
primary caregivers in learning how to cultivate marijuana might themselves be open to
prosecution for cultivation. (§ 11358.)” (Mentch, supra, 45 Cal.4th at p. 291; fn.
omitted.) And here is how our Supreme Court explained the limited extent of the
immunity provided by section 11362.765, subdivisions (a) and (b)(3): “Here, this means
Mentch, to the extent he assisted in administering, or advised or counseled in the
administration or cultivation of, medical marijuana, could not be charged with cultivation
or possession for sale ‘on that sole basis.’ (§ 11362.765, subd. (a).) It does not mean
Mentch could not be charged with cultivation or possession for sale on any basis; to the
extent he went beyond the immunized range of conduct, i.e., administration, advice, and
counseling, he would, once again, subject himself to the full force of the criminal law.
As it is undisputed Mentch did much more than administer, advise, and counsel, the
[Medical Marijuana] Program [Act] provides him no defense, and the trial court did not
err in failing to instruct on it.” (Mentch, supra, 45 Cal.4th at p. 292, fn. omitted.) As in
Mentch, defendant went beyond the limited immunized scope of collective or cooperative
marijuana cultivation. He entered into two separate written notarized contracts to provide
marijuana to the Keeping It Medical for-profit corporation. In return, he would be paid a
sufficient amount of money so he would recoup his expenses and live off of the rest of
the income. His two separate State Board of Equalization seller’s permits, one for a
corporation, indicate he expected to earn $60,000 annually. And although not essential,
defendant’s marijuana growing venture arose in the context of an absence of any
caregiver relationship within the Keeping It Medical customer base and community.
And, of course, defendant’s corporation, Herbmetics, Inc., had no relationship with the
K.I.M. Collective other than as a supplier of marijuana.
This case is different from People v. Urziceanu, supra, 132 Cal.App.4th at pages
785-786. In Urziceanu, the defendant was convicted of conspiracy to sell marijuana. (Id.
at p. 758.) There was evidence the defendant operated a collective, FloraCare, out of his
home. (Id. at pp. 759-765.) The jury was not instructed on section 11362.775. The
Court of Appeal held that the jury should have been so instructed. (Id. at p. 785-786.)
The Court of Appeal described the evidence which would serve as a defense to the
21
conspiracy to sell marijuana charge: “Here, at trial, defendant produced substantial
evidence that suggests he would fall within the purview of section 11362.775. He
presented the court with evidence that he was a qualified patient, that is, he had a
qualifying medical condition and a recommendation or approval from a physician. His
codefendant Rodger submitted that same evidence as to herself. Defendant further
presented evidence of the policies and procedures FloraCare used in providing marijuana
for the people who came to him, including the verification of their prescriptions and
identities, the fact that these people paid membership fees and reimbursed the defendant
for costs incurred in the cultivation through donations. Further, he presented evidence
that members volunteered at the cooperative.” (People v. Urziceanu, supra, 132
Cal.App.4th at p. 786.)
In Urziceanu, supra, 132 Cal.App.4th, the only charge upon which a retrial was
ordered was conspiracy to sell marijuana. Section 11362.775 prohibits conviction for
cultivation based solely on the fact the accused collectively or cooperatively cultivated
marijuana for medical purposes. Conspiracy involves matters such as common design,
plan or agreement. (See People v. Robinson (1954) 43 Cal.2d 132, 136; see 1 Witkin &
Epstein, Cal. Criminal Law 4th ed. 2012) Elements, § 80, p. 375.) The collective action
and cooperation elements of section 11362.775 involved a similar type of agreement or
conduct covered by the conspiracy to sell marijuana charge in Urziceanu. As noted, the
present case does not involve a conspiracy charge; merely marijuana cultivation. Here,
defendant was not convicted based on collective or cooperative action by itself. Section
11362.775 has nothing to do with our case. Hence, there is no merit to defendant’s
argument his marijuana cultivation conviction must be reversed because his actions were
protected from criminal liability by section 11362.775.
[Part III (B) and (C) are deleted from publication.]
22
B. Unpublished Discussion Concerning The Merits
First, defendant asserts the evidence is insufficient because he was operating under
a mistake of fact. The jury was instructed as to mistake of fact. There was substantial
deception evidence defendant knew he was not operating within the law including: the
deception directed at the City of San Fernando and the State Board of Equalization in
connection with the guitar business; the deception directed at the State Board of
Equalization in connection with the address of Herbmetics, Inc.; the use of air scrubbers
to conceal the smell of marijuana; and the efforts to cover windows at the 1933 First
Street premises as described by Officer Cervantes. There was substantial evidence
defendant knew his conduct, which Detective Bixler testified would produce large
quantities of commercially valuable marijuana, was illegal.
Second, defendant contends section 11362.775 is unconstitutionally vague. We
agree with the Attorney General that section 11362.775 is reasonably clear that users and
caregivers can associate to cultivate marijuana. It is also clear that such limited collective
conduct by itself cannot serve as a basis for criminal liability under state law. (United
States v. Lanier (1997) 520 U.S. 259, 266; In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Third, defendant argues there was instructional error. Defendant argues the trial
court incorrectly defined the term “collective” and neglected to instruct on the right to
reasonable reimbursement. Given the fact that section 11362.775 was inapplicable, any
error was harmless under any standard of reversible error. (Chapman v. California
(1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.) Fourth, defendant
argues the trial court improperly allowed the parties to argue what the law allows and
there was prosecutorial misconduct. Given the state of the evidence any alleged error
was harmless under any standard of reversible error. (Chapman v. California, supra, 386
U.S. at p. 22; People v. Watson, supra, 46 Cal.2d at p. 836.)
23
C. Unpublished Discussion Concerning Fines
First, the trial court stated all mandatory fines associated with this case, without
specifying them, are to be imposed. The clerk’s minutes fail to fully reflect the
imposition of those fines. First, the clerk’s minutes refer to the $50 section 11372.5,
subdivision (a) laboratory fine but misstates the proper amount of penalties and the
surcharge. The order granting probation must be amended to reflect the imposition of the
$50 section 11372.5, subdivision (a) laboratory fine plus: a $50 state penalty under Penal
Code section 1464, subdivision (a)(1); a $35 county penalty pursuant to Government
Code section 76000, subdivision (a)(1); a $10 Penal Code section 1465.7, subdivision (a)
state surcharge; a $15 Government Code section 70372, subdivision (a)(1) state court
construction penalty; a $10 Government Code section 76000.5, subdivision (a)(1)
emergency medical services penalty; a $5 Government Code section 76104.6, subdivision
(a)(1) deoxyribonucleic acid penalty; and a $5 Government Code section 76104.7,
subdivision (a) state-only deoxyribonucleic acid penalty. (People v. Sharret (2011) 191
Cal.App.4th 859, 863-864; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1109.)
Second, the clerk’s minutes make no reference to another mandatory fine, the
section 11372.7, subdivision (a) drug program fee. The clerk’s minutes must be
corrected to reflect the imposition of the section 11372.7, subdivision (a) drug program
fee plus the following penalties and surcharge: a $150 state penalty (Pen. Code, § 1464,
subd. (a)(1)); a $105 county penalty (Gov. Code, § 76000, subd. (a)(1)); a $30 state
surcharge (Pen. Code, § 1465.7, subd. (a)); a $45 state court construction penalty (Gov.
Code, § 70372, subd. (a)(1)); a $15 deoxyribonucleic acid penalty (Gov. Code,
§ 76104.6, subd. (a)(1)); a $15 state-only deoxyribonucleic acid penalty (Gov. Code,
§ 76104.7, subd. (a)); and a $30 emergency medical services penalty (Gov. Code,
§ 76000.5, subd. (a)(1)). (People v. Corrales (2013) 213 Cal.App.4th 696, 702.) There is
no merit to the suggestion any remand ought to occur to determine defendant’s ability to
pay the section 11372.7, subdivision (a) drug program fee. The trial court ordered all
“mandatory fines” imposed, which includes the drug program fee. Such an order
24
includes an implied finding defendant has the ability to pay it over the three-year
probationary period. Defendant imposed no objection to the broad order concerning
mandatory fines nor asserted an inability to pay it. Because of the discretionary nature of
the ability to pay the assessment, the failure to object forfeits any issue in that regard.
(People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Scott (1994) 9 Cal.4th 331, 353,
fn. 15.)
Finally, the trial court orally imposed a $500 fine plus penalty assessments. Penal
Code section 672 states in part: “Upon a conviction for any crime punishable by
imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the
court may impose a fine on the offender not exceeding . . . ten thousand dollars ($10,000)
in cases of felonies . . . .” Here there are mandatory fines which were imposed pursuant
to sections 11372.5, subdivision (a) and 11372.7, subdivision (a). Thus, no fine could be
imposed pursuant Penal Code section 672. (People v. Breazell (2002) 104 Cal.App.4th
298, 302; see 3 Witkin & Epstein, op. cit., Punishment, § 102, p. 180.) The order
imposing a $500 fine plus penalty assessments is reversed.
[The balance of the opinion is to be published.]
25
IV. DISPOSTION
The judgment of conviction is affirmed. The orders granting probation and
imposing fines are modified as specified in part III (C) of this opinion. Upon remittitur
issuance, the judgment and the clerk’s minutes are to be modified to conform to part III
(C) of this opinion.
CERTIFIED FOR PARTIAL PUBLICATION
TURNER, P. J.
We concur:
MOSK, J.
KRIEGLER, J.
26