People v. London

Filed 7/30/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E057249

v. (Super.Ct.No. FVA1001387)

CHRISTOPHER LONDON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Arthur A. Harrison

and Thomas S. Garza, Judges.1 Affirmed.

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and

Appellant.

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

certified for publication with the exception of part III.

1 Judge Harrison heard the pretrial motions; Judge Garza presided over the trial.

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Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Steve Oetting and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and

Respondent.

I. INTRODUCTION

A jury found defendant and appellant Christopher London guilty as charged of

cultivating marijuana and possessing marijuana for sale. (Health & Saf. Code, §§ 11358

[cultivation], count 1; 11359 [possession for sale], count 2.)2 Defendant was sentenced to

three years’ probation, subject to terms and conditions including that he serve 60 days in

jail.

At trial, defendant claimed he was lawfully growing 100 marijuana plants for a

medical marijuana collective under the Compassionate Use Act of 1996 (the CUA)

(§ 11362.5) and the Medical Marijuana Program Act (the MMPA) (§ 11362.7 et seq.),

and was therefore not guilty of unlawful marijuana cultivation (§ 11358), possession for

sale (§ 11359), or the lesser included offense of marijuana possession (§ 11357).

In the nonpublished portion of this opinion, we reject defendant’s claims that the

court erroneously denied his motion to suppression evidence of his 100 marijuana plants

and his motion to exclude unMirandized3 statements he made to police officers. In the

2All further statutory references are to the Health & Safety Code unless otherwise

indicated.

3 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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published portion, we address defendant’s claims of evidentiary and instructional error

concerning his lawful cultivation defense.

We first address defendant’s claim that the court erroneously refused to allow his

cannabis expert, William Britt, to give opinion testimony critical to his lawful cultivation

defense, including that defendant was lawfully cultivating the marijuana under the

MMPA and that a $20,000 sum he expected to be paid for his 100 marijuana plants, when

fully grown, did not include an unlawful profit. (§ 11362.765, subd. (a) [MMPA does not

allow cultivation or distribution of marijuana for profit].) We conclude the expert’s

testimony on these and other points was properly excluded because the expert lacked

sufficient evidence to render the opinions. (Evid. Code, § 801, subd. (b).)

We then address defendant’s additional claim that the court erroneously instructed

the jury on his lawful cultivation defense under the MMPA. (§§ 11362.765, 11362.775.)

We agree the instructions misstated the applicable law under the MMPA, but conclude

defendant did not produce sufficient evidence to raise a reasonable doubt he was lawfully

growing the 100 marijuana plants for himself and other qualified patients, and he was not

earning a profit. Accordingly, there was insufficient evidence to support instructing the

jury on defendant’s MMPA defense. We therefore affirm the judgment.

II. BACKGROUND

A. Prosecution Evidence

Around 1:00 a.m. on June 11, 2010, Fontana Police Officer Casey Mutter went to

a house in Fontana to investigate a report of an elderly woman in the front yard calling

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for help. He found an elderly woman standing in the driveway with the garage door

open, claiming her son, defendant, was holding her “prisoner” inside the house. After

speaking to defendant inside the house, Officer Mutter determined the woman was

suffering from dementia and took her into custody pursuant to Welfare and Institutions

Code section 5150.

Officer Mutter noticed an odor of marijuana as he went into the house through the

pedestrian door inside the garage. Inside the house he found defendant asleep on a bed in

a bedroom. As he woke defendant, he noticed a small amount of marijuana in a baggie

on the bed and asked defendant where he got the marijuana. Defendant said the

marijuana was his, he was growing marijuana in a room in the house, and pointed to a

large black tarp covering the entryway to the grow room. Defendant showed Officer

Mutter the marijuana plants, along with some “paperwork” that was attached to the wall

next to the tarp. He claimed the paperwork showed he was lawfully cultivating the

marijuana for a medical marijuana collective in Malibu called the Green Galleon.

Officer Mutter contacted the narcotics unit, and Officer Joshua Rice, a narcotics

officer, came to the house with two other officers. Officer Rice smelled marijuana in the

area in front of the house. Inside the garage, he saw duct tubing used for ventilation

going into the walls of the house and a “very strong[]” odor of marijuana coming through

the duct tubing. In the grow room, he saw around 100 marijuana plants growing under

seven metal lamp shades, with 1,000-watt light bulbs, powered by numerous electrical

cords.

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Officer Rice sat down with defendant in the living room and spoke to him about

the marijuana plants. Defendant explained he was growing the plants for the Green

Galleon collective because he was having financial problems and needed to make money.

He was living with and caring for his elderly mother who was on the verge of losing the

house to foreclosure, he needed to provide for his ex-wife and daughter, and “just have a

better lifestyle.” He had spoken with his cousin, Paul Miller, about his financial

problems, and Miller took him to the Green Galleon collective in Malibu. He later signed

the “paperwork” to become part of the collective. Someone from the collective gave him

100 immature or “clone” marijuana plants and told him he would be paid $20,000 if he

returned the plants, fully grown, to the collective. He would be reimbursed for his costs

and expenses incurred in growing the plants, including his electricity bills, which he

estimated would total around $4,000. He was planning to reinvest some of his $20,000

“profit” in larger grows to make larger profits. He gave his paperwork from the

collective to Officer Rice, along with his physician’s recommendation to use marijuana

and his medical marijuana identification card.4 Officer Rice testified that in his opinion

defendant possessed the 100 marijuana plants for sale because he “was going to hand

over 100 plants for $20,000.”

4 The parties stipulated that the 100 plants found in the house were marijuana

plants and that defendant had a valid and current medical marijuana identification card.

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B. Defendant’s Testimony

In his defense, defendant testified he was growing the marijuana plants for himself

and other patient-members of the Green Galleon collective. His residence was in Malibu,

but he lived with his elderly mother in Fontana during most of the week and was her full-

time caretaker. Five people comprised the Green Galleon collective: himself, his

mother, his roommate Victor Tamayo, his cousin Paul Miller, and a man named Brian,

whose last name he did not know.

After defendant told Miller he was having financial difficulties, Miller advised

him he could make money growing marijuana “over a period of time.” Miller provided

him with 100 “clone” or “infant” marijuana plants, and he set up the indoor growing

operation in his mother’s Fontana house. The 100 plants were his first “grow” for a

medical marijuana collective, but he had grown marijuana “for other people” in

Humboldt County, among other places, during the 1970’s and 1980’s.

Miller was the only person from the Green Galleon collective with whom

defendant had spoken concerning his growing operation. His role as a “bud tender” for

the collective was to grow the plants to maturity and return them to Miller, who was to

distribute them among the members of the collective and the original suppliers of the

plants. Miller and Tamayo sometimes helped defendant with his growing operation by

watering the plants and turning the grow lights on and off when defendant was not at his

mother’s house in Fontana.

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In total, defendant had invested $10,000 in his growing operation. He did not

recall telling the officers he was going to make a “pure profit” of $20,000 from growing

the 100 marijuana plants and handing them over to Miller. He expected to be reimbursed

for his costs of growing the plants and his labor, or time and effort involved in growing

the plants, and he saw himself as an employee of the collective. He was cultivating the

marijuana to become financially solvent and understood he would make his $10,000

investment back over time and several medical marijuana grows. Britt’s expert testimony

is discussed below.

III. ANALYSIS/THE PRETRIAL MOTIONS

A. The Suppression Motion Was Properly Denied

In a pretrial motion, defendant moved to suppress the physical evidence found in

his house, including the marijuana plants and lamps, the observations the officers made

based on being inside his house, and his statements to the officers inside the house. (Pen.

Code, § 1538.5.) The People filed a written opposition. The motion was denied

following a hearing that was combined with the preliminary hearing. Defendant claims

the suppression motion should have been granted because all of the challenged evidence

was obtained during or as a result of a warrantless search in violation of his Fourth

Amendment rights. We conclude the motion was properly denied.

1. The Evidence Adduced on the Suppression Motion

During the hearing on the suppression motion, Officer Mutter testified that around

1:00 a.m. on June 11, 2010, he was dispatched to a house in Fontana to investigate a

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“suspicious circumstances” call. He found an elderly woman outside the house,

“screaming and yelling.” The woman told him that her son, defendant, was holding her

“prisoner.” It appeared to Officer Mutter the woman might be suffering from dementia.

Officer Mutter asked the woman for permission to enter the home, and she gave

him permission. The garage door was open, and Officer Mutter went into the house

through a door connecting the garage to the house. He intended to perform a “welfare

check” and determine whether the woman was in a safe environment. Inside the garage,

he smelled a “strong odor of marijuana.”

Inside the house, Officer Mutter saw defendant lying on a bed and a small bag of

marijuana on the bed. He woke defendant and asked him where he got the marijuana.

Defendant said he grew the marijuana and pointed toward a room covered with an

opaque, black plastic tarp. Officer Mutter looked behind the tarp and saw marijuana

plants growing there. Defendant said he was lawfully growing the marijuana for a

collective and produced some paperwork to support his claim.

After speaking with defendant about the woman outside the house, Officer Mutter

determined the woman had Alzheimer’s disease and was not being held against her will.

He took her into custody pursuant to Welfare and Institutions Code section 5150.

Officer Mutter then summoned Officer Rice to the scene to determine whether the

marijuana grow was lawful under California’s medical marijuana laws. Officer Rice

smelled marijuana from outside the house. Inside the house, Officer Rice observed 100

marijuana plants growing in the living room under metal lamp shades and 1,000-watt

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lights. Each plant was over three feet tall and in the “budding” stage. Officer Rice

estimated that an ounce of marijuana could have been harvested from each plant. The

heat from the lamps was being channeled, with a fan, through air ducts leading into the

garage.

Office Rice spoke to defendant inside the home in the presence of three or four

other officers, some of whom were wearing plain clothes and others uniforms. Defendant

was never read his Miranda rights and was never told he was free to leave. Defendant

told Officer Rice he was growing the marijuana for a medical marijuana collective to

make money because he had been having financial problems. The collective had

provided him with 100 “clone” or “baby” plants to grow, and he expected to be paid

$20,000 when the plants were fully grown, plus his expenses, leaving him with $20,000

“pure profit,” according to Officer Rice. Defendant said he intended to use the profit to

pay bills, take care of his mother and child, improve his lifestyle, and continue growing

marijuana.

Defendant gave Officer Rice some paperwork which he claimed showed he was

growing the marijuana for a medical marijuana collective. Aside from the quantity of

marijuana plants growing in the house, the officers found no evidence indicating

defendant was selling marijuana; there were no packaging materials, scales, client lists, or

“pay/owe” lists. Nor was there any evidence that defendant had yet received any money

for the marijuana plants.

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2. The Trial Court’s Ruling on the Suppression Motion

Following the officers’ testimony, defense counsel argued the suppression motion

should be granted because “there was no probable cause to search. The officer could

have easily [gotten] a warrant. Any consent that was given was purely a submission to

authority.” Before the prosecutor could explain the People’s position, the trial court

denied the motion.

The court explained: “First of all, I think the officer’s presence at the scene was

legitimate. It was in response to a circumstance that was unknown to him at the time he

responded. At the time he responded, he smells marijuana, and I think at that point

further inquiry or investigation may be necessary and legitimate.”

3. Analysis

In reviewing the denial of a defendant’s motion to suppress evidence pursuant to

Penal Code section 1538.5, we review the record in the light most favorable to the ruling

and uphold the trial court’s factual findings, express or implied, if substantial evidence

supports them. (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004,

1011.) Based on the trial court’s well-supported factual findings, we independently

determine whether the search or seizure was reasonable under the Fourth Amendment

(People v. Camacho (2000) 23 Cal.4th 824, 830, citing People v. Leyba (1981) 29 Cal.3d

591, 597) and what particular legal principles are relevant to this legal determination

(People v. Gemmill (2008) 162 Cal.App.4th 958, 963).

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In California, federal constitutional standards govern the admissibility evidence

derived from governmental searches and seizures. (Cal. Const., art. I, § 28, subd. (f)(2);

People v. Troyer (2011) 51 Cal.4th 599, 605; People v. Barnes (2013) 216 Cal.App.4th

1508, 1513.) The Fourth Amendment to the United States Constitution prohibits only

unreasonable searches and seizures.5 (Florida v. Jimeno (1991) 500 U.S. 248, 250;

Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 403 [“the ultimate touchstone of the

Fourth Amendment is ‘reasonableness’. . . .”].) A warrantless entry into a home to

conduct a search or seizure is presumptively unreasonable, and the government bears the

burden of establishing that exigent circumstances or another exception to the warrant

requirement justified the entry. (People v. Rogers (2009) 46 Cal.4th 1136, 1156.)

Under the emergency aid exception to the warrant requirement, officers may enter

a home without a warrant in order to render emergency assistance when the officers have

an objectively reasonable basis to believe an occupant of the home is or might be

seriously injured or imminently threatened with such injury. (Brigham City, Utah v.

Stuart, supra, 547 U.S. at pp. 402-406; People v. Gemmill, supra, 162 Cal.App.4th at pp.

961, 964.) “‘“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.)

5 The Fourth Amendment provides: “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.” (U.S. Const., 4th Amend.)

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Here, the emergency aid exception justified Officer Mutter’s entry into the home.

As the trial court indicated, Officer Mutter had insufficient information, based solely on

his initial encounter with defendant’s elderly mother, to determine whether she needed

emergency assistance and, if so, what kind. When Officer Mutter arrived at the house in

response to a report of “suspicious circumstances,” he encountered an elderly woman in

the driveway with the garage door open, “screaming and yelling” and claiming her son,

defendant, was holding her “prisoner” inside her “own home.” Though it appeared to

Officer Mutter that the woman was suffering from dementia, Officer Mutter acted

reasonably in entering the house to determine whether defendant was holding the woman

captive and she needed to be protected from defendant, or whether she was suffering

from dementia, needed protection from herself, and should be held pursuant to Welfare

and Institutions Code section 5150. Officer Mutter entered the house to conduct a

“welfare check,” that is, to see whether the woman was in “a safe environment.”

Further, the woman gave Officer Mutter her permission to enter the house. A

search based on consent is another exception to the warrant requirement. (Schneckloth v.

Bustamonte (1973) 412 U.S. 218, 219.) Consent to a search may be given by the

defendant who later challenges the search’s constitutional validity, or it may be given by

“‘a third party who possesses common authority over the premises’ . . . .” (People v.

Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1198.) This principle rests “‘on

mutual use of the property by persons generally having joint access or control . . . so that

it is reasonable to recognize that any of the co-inhabitants has the right to permit the

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inspection in his own right and that the others have assumed the risk that one of their

number might permit the common area to be searched.’” (People v. Bishop (1996) 44

Cal.App.4th 220, 237.) Based on the woman’s presence outside the house at 1:00 a.m.

and her statement that defendant was holding her captive in her own home, Officer

Mutter had reason to believe the woman lived in the house and was authorized to consent

to his warrantless entry, even though she appeared to be suffering from dementia.

Defendant argues Officer Mutter violated the “knock and announce” rule by

failing to knock and announce his presence and purpose before he entered the house. The

“knock and announce” principle is part of the reasonableness inquiry under the Fourth

Amendment. (Wilson v. Arkansas (1995) 514 U.S. 927, 929-930, 934.) It requires that

“police officers entering a dwelling must knock on the door and announce their identity

and purpose before attempting forcible entry.” (Richards v. Wisconsin (1997) 520 U.S.

385, 387.) But the police may forego the knock and announce requirement when they

have “a reasonable suspicion that knocking and announcing their presence, under the

particular circumstances, would be dangerous or futile, or that it would inhibit the

effective investigation of the crime by, for example, allowing the destruction of

evidence.” (Id. at p. 394.)

Given the information available to him at the time he entered the house, Officer

Mutter could have reasonably believed that knocking and announcing his presence and

purpose would have allowed defendant to destroy any evidence he was holding the

elderly woman captive. In addition, the woman’s consent to allow the officer to enter the

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house excused any requirement the officer may have otherwise had to knock and

announce his presence and purpose. Under the circumstances, the officer acted

reasonably in failing to knock and announce his presence and purpose before entering.

Defendant further argues any emergency had passed by the time Officer Mutter

entered the house because, at that time, the woman was safely in Officer Mutter’s patrol

car with his partner. Her safety inside the patrol car did not obviate Officer Mutter’s

need to enter the house to determine whether she required emergency assistance and, if

so, what kind. His lack of sufficient information to make this determination, and the

woman’s consent to his entry into the house, justified his warrantless entry to determine

whether and, if so, what kind of emergency aid she required.6

In the trial court, the prosecution argued defendant effectively consented to the

search of the grow room. Defendant maintains he did not freely and voluntarily consent

to the search of the grow room. Instead, he argues he only told Officer Mutter he was

growing marijuana behind the tarp because he had no choice but to submit to the officer’s

authority.

6 As the court observed in Georgia v. Randolph (2006) 547 U.S. 103, 118: “No

question has been raised, or reasonably could be, about the authority of the police to enter

a dwelling to protect a resident from domestic violence; so long as they have good reason

to believe such a threat exists, it would be silly to suggest that the police would commit a

tort by entering . . . to determine whether violence (or threat of violence) has just

occurred or is about to (or soon will) occur, however much a spouse or co-tenant

objected. (And since the police would then be lawfully in the premises, there is no

question that they could seize any evidence in plain view or take further action supported

by any consequent probable cause[.] [Citation.])”

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When the prosecution relies upon consent to justify the lawfulness of a search, it

has the burden of showing “the consent was, in fact, freely and voluntarily given.”

(Bumper v. North Carolina (1968) 391 U.S. 543, 548, fn. omitted; see also United States

v. Shaibu (9th Cir. 1990) 920 F.2d 1423, 1426 [consent must also be “unequivocal and

specific”].) The prosecution cannot discharge its burden by showing no more than mere

acquiescence to a claim of lawful authority. (Bumper v. North Carolina, supra, at pp.

548-549.) Nor can implied consent be construed from the failure of the defendant to

“protest the entry.” (People v. Superior Court (1970) 10 Cal.App.3d 122, 127.) The

voluntariness of a person’s consent to a search is question of fact to be determined from

the totality of the circumstances. (Schneckloth v. Bustamonte, supra, 412 U.S. at pp. 248-

249.)

Substantial evidence supports the court’s implied finding that defendant freely and

voluntarily consented to Officer Mutter’s initial search and Officer Rice’s subsequent

search of the grow room. When Officer Mutter asked defendant where he obtained the

marijuana in plain view on his bed, defendant claimed he was legally growing marijuana

and gestured toward the room with its entryway covered by the opaque black tarp, and

showed Officer Mutter paperwork supporting his claim he was legally growing the

marijuana. Construed in the light most favorable to the People, the evidence shows

defendant was confident in his position he was lawfully growing the 100 marijuana

plants. He had paperwork to support his claim, posted on the wall outside the living

room, and freely showed the paperwork to the officers.

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At no time did defendant question or object to any of the officers’ presence in the

house or to their search of the grow room, despite having had ample time and opportunity

to do so. If he had any such objections, he could have raised them at any point during his

encounter with the officers, without challenging the officers’ authority, but he apparently

chose not to do so. Because substantial evidence supports it, we are required to uphold

the court’s implied finding that defendant freely and voluntarily consented to the search

of the grow room. (People v. Troyer, supra, 51 Cal.4th at p. 605.)

Lastly, defendant claims Office Rice’s subsequent entry and separate search of the

grow room constituted a separate violation of his Fourth Amendment rights, in addition

to and apart from the Fourth Amendment violations by Officer Mutter. He argues Officer

Rice’s search was not consensual for the same reason Officer Mutter’s initial search was

not consensual: he was merely submitting to the officers’ authority. He also argues that

if his mother’s claim of being held captive was the initial reason for the police presence,

she was secure in the patrol car and Officer Mutter had determined she was in no danger

inside the home by the time Officer Rice arrived on the scene.

We disagree that Officer Rice’s search violated defendant’s Fourth Amendment

rights. Although the emergency involving defendant’s mother had passed by the time

Officer Rice arrived at the house, his search was lawful for the same reason Officer

Mutter’s initial search was lawful: defendant impliedly consented to it. Again, the

evidence, construed in the light most favorable to the trial court’s denial of the

suppression motion, indicated defendant was confident in his belief that he was legally

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growing marijuana. Thus, substantial evidence supports the court’s implied finding that

defendant freely and voluntarily consented to each officer’s search of the grow room.

Just as he made no objection to Officer Mutter’s initial search, defendant did not object

when Officer Rice entered the house and searched the grow room. He showed Officer

Rice the same paperwork supporting his legal cultivation claim that he showed Officer

Mutter. On this record, defendant’s implied consent to allow Officer Mutter to search the

grow room extended to Officer Rice’s subsequent search.

B. The Miranda Motion Was Properly Denied

Defendant made an oral motion in limine to exclude the statements he made to the

officers at his house—including his statement to Officer Rice that he expected to earn a

$20,000 “pure profit” from his medical marijuana grow—on the ground the statements

were taken in violation of his Miranda rights. Defendant was not read his Miranda rights

before he spoke to the officers.

The motion was denied following a hearing, and defendant’s statements to the

officers were admitted during the prosecution’s case-in-chief. Defendant claims the

motion should have been granted. We disagree. Defendant was not in custody when he

made the statements and voluntarily agreed to speak with the officers.

1. Relevant Background

At the hearing on the Miranda motion, Officer Mutter testified that after he woke

defendant he asked defendant where he obtained the small amount of marijuana in plain

view on his bed and defendant told him, “I pretty much grow it myself,” and gestured

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toward the black tarp covering the living room where numerous marijuana plants were

growing. Officer Mutter was in uniform when he questioned defendant, did not discuss

“specifics” with him, and called the narcotics unit. At some point, Officer Mutter’s

partner, Officer Macias, entered the house and was also in uniform. Officer Mutter did

not recall whether Officer Macias was with him when he questioned defendant.7 After

Officer Mutter saw the marijuana plants, defendant showed him paperwork supporting

his claim he was growing the marijuana for a medical marijuana collective. Officer

Mutter agreed defendant “wasn’t free to just walk away” after Officer Mutter saw the

marijuana plants and called the narcotics unit. Still, Officer Mutter did not handcuff

defendant or place him in custody.

When Officer Rice arrived, he contacted defendant in the living room. He was

wearing plain clothes, and there were two other officers wearing plain clothes and two

officers in uniform. He did not read defendant his Miranda rights before he questioned

him. He told defendant he was not under arrest and he “just wanted to talk to him about

his marijuana grow.”

When asked whether defendant could have “just walked out of the house, walked

away from you and the other officers,” Officer Rice responded: “[I]f he had somewhere

to go, he could have gone. I told him he wasn’t going to be placed under arrest at that

time, and he agreed to speak with me. He was in his house, so he didn’t really appear to

7It was unclear whether other officers had arrived outside and were taking care of

defendant’s mother by the time Officer Mutter’s partner, Officer Macias, entered the

house.

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have anywhere to go. But if he said he needed to leave, we could have wrapped up our

investigation, and he could have left.”

Officer Rice asked defendant about his relationship with the collective and how its

growers were compensated. Defendant did not appear nervous and was not arrested

following the interview. The trial court denied the motion, finding defendant was not in

custody or “in a custodial setting” when he spoke to the officers.

2. Analysis

“Miranda advisements are only required when a person is subjected to custodial

interrogation. [Citation.] A suspect is in custody when a reasonable person in the

suspect’s position would feel that his ‘freedom of action is curtailed to a “degree

associated with formal arrest.” [Citation.]’ [Citation.]” (People v. Bejasa (2012) 205

Cal.App.4th 26, 35 [Fourth Dist., Div. Two].) “In determining whether an individual was

in custody, a court must examine all of the circumstances surrounding the interrogation

. . . .” (Stansbury v. California (1994) 511 U.S. 318, 322.)

Though no single factor is dispositive of the custody determination, relevant

factors include: “‘(1) [W]hether the suspect has been formally arrested; (2) absent

formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to

suspects; and (5) the demeanor of the officer, including the nature of the questioning.’”

(People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)

Additional factors include: “[W]hether the suspect agreed to the interview and

was informed he or she could terminate the questioning, whether police informed the

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person he or she was considered a witness or suspect, whether there were restrictions on

the suspect’s freedom of movement during the interview, and whether police officers

dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or

accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at

the conclusion of the interview.” (People v. Pilster, supra, 138 Cal.App.4th at pp. 1403-

1404.)

In reviewing a trial court’s ruling on a motion to exclude statements based on a

Miranda violation, “‘we accept the trial court’s resolution of disputed facts and

inferences, and its evaluations of credibility, if supported by substantial evidence. We

independently determine from the undisputed facts and the facts properly found by the

trial court whether the challenged statement was illegally obtained.’ [Citation.]” (People

v. Gamache (2010) 48 Cal.4th 347, 385.)

Substantial evidence supports the trial court’s determination that defendant was

not in custody when he was questioned by Officer Mutter and later by Officer Rice.

Accordingly, no Miranda advisements were necessary. Though Officer Mutter testified

defendant was not free to leave after he discovered the marijuana plants, there is no

indication that Officer Mutter told defendant he was not free to leave. (Stansbury v.

California, supra, 511 U.S. at p. 325 [“An officer’s knowledge or beliefs may bear upon

the custody issue if they are conveyed, by word or deed, to the individual being

questioned”].) Officer Mutter did not place defendant in handcuffs, and there was no

evidence he restricted defendant’s movement in any way. Nor was there any evidence

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Officer Mutter was aggressive, confrontational, or accusatory toward defendant, or told

defendant he was a suspect in a criminal investigation. Officer Mutter questioned

defendant for no more than one minute, then contacted the narcotics unit.

Before Officer Rice questioned defendant, he told defendant he was not going to

be placed under arrest at that time, and he “just wanted to talk to him about his marijuana

grow.” According to Officer Rice, defendant agreed to speak with him. Though Officer

Rice questioned defendant in the presence of four other officers, there was no testimony

that any of the officers were aggressive, confrontational, or accusatory toward defendant,

or pressured defendant to answer any questions. (Cf. United States v. Craighead (9th Cir.

2008) 539 F.3d 1073, 1078-1079, 1083 [presence of numerous armed officers to execute

search warrant turned suspect’s home into “police-dominated atmosphere” amounting to

custody for purposes of Miranda].) As Officer Rice promised, defendant was not taken

into custody following Officer Rice’s interview, and it does not appear the interview was

lengthy.

Though Officers Mutter and Rice questioned defendant in his home in the middle

of the night after he was unexpectedly awakened by Officer Mutter, and it appears

defendant had nowhere else to go, the totality of the circumstances indicates defendant

was not in custody and could have refused to answer the officers’ questions without being

taken into custody. In sum, “the interplay and combined effect of all the circumstances,”

“on balance,” did not “create[] a coercive atmosphere such that a reasonable person

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would have experienced a restraint tantamount to an arrest.” (People v Aguilera (1996)

51 Cal.App.4th 1151, 1162.)

IV. ANALYSIS/MMPA ISSUES

A. Summary of California’s Medical Marijuana Laws

1. The CUA

In the November 1996 general election, California voters passed Proposition 215,

an initiative statute titled Medical Use of Marijuana. The measure added section

11362.5, the Compassionate Use Act of 1996, to the Health and Safety Code. (People v.

Mower (2002) 28 Cal.4th 457, 463; § 11362.5, subd. (a).) The CUA grants patients and

their primary caregivers limited immunity from state criminal prosecution, including a

defense at trial, for two marijuana-related offenses: possession (§ 11357) and cultivation

(§ 11358). (People v. Mower, supra, at pp. 470, 474; People ex rel. Lungren v. Peron

(1997) 59 Cal.App.4th 1383, 1392 (Peron).) The CUA 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.” (§ 11362.5, subd. (d).)

The CUA’s limited immunity from state criminal prosecution for unlawful

marijuana possession and cultivation applies solely to qualified patients and their primary

caregivers who possess or cultivate marijuana for the patient’s personal use. (People v.

Mower, supra, 28 Cal.4th at pp. 474-475.) As one court has explained, the CUA is a

22

“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 . . . .” (People

v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773 (Urziceanu), italics added.) The

court reasoned: “The use of the singular identifying the patient and primary caregiver as

the person privileged to engage in the identified conduct and the term ‘personal medical

purposes’ suggests the Compassionate Use Act was designed for a single patient to grow

or possess his or her own marijuana, or to have that marijuana possessed or grown for

him or her by his or her caregiver. While a primary caregiver could care for and cultivate

more than one patient’s marijuana, this language lends no support to defendant’s

contention that ‘patients’ and their ‘caregivers’ can collectively pool talents, efforts, and

money to create a stockpile of marijuana that is to be collectively distributed.” (Id. at p.

768.)8

2. The MMPA

In 2003, the Legislature enacted the MMPA (§ 11362.7 et seq.) in response to the

CUA’s stated purpose, among others, to “encourage the federal and state governments to

8The CUA defines a “primary caregiver” as “the individual designated by the

person exempted under this section [i.e., a qualified patient] who has consistently

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

subd. (e); see People v. Mentch (2008) 45 Cal.4th 274, 283.) A person does not qualify

as a primary caregiver merely by having a qualified patient designate him or her as such

or by providing a patient with medical marijuana. (Id. at pp. 283-285.) A person

asserting primary caregiver status must prove “at a minimum that he or she (1)

consistently provided caregiving [to a qualified patient], (2) independent of any

assistance in taking medical marijuana, (3) at or before the time he or she assumed

responsibility for assisting with medical marijuana.” (Id. at p. 283.)

23

implement a plan to provide for the safe and affordable distribution of marijuana to all

patients in medical need of marijuana.” (§ 11362.5, subd. (b)(1)(C); Urziceanu, supra,

132 Cal.App.4th at pp. 782-783.) The MMPA did not amend the CUA; it is a separate,

legislative scheme that implements the CUA. (People v. Hochanadel (2009) 176

Cal.App.4th 997, 1012-1013; County of San Diego v. San Diego NORML (2008) 165

Cal.App.4th 798, 829-831.)

The MMPA “expressly expands the scope of the [CUA] beyond the qualified

defense to cultivation and possession of marijuana” to possession of marijuana for sale

(§ 11359) among other offenses. (Urziceanu, supra, 132 Cal.App.4th at p. 784.) In

contrast to the more restrictive CUA, the MMPA “contemplates the formation and

operation of medicinal marijuana cooperatives that would receive reimbursement for

marijuana and the services provided in conjunction with the provision of that marijuana.”

(Id. at p. 785; see §§ 11362.765,11362.775.) The MMPA “abrogated” pre-MMPA case

law, including Peron, supra, 59 Cal.App.4th 1383, to the extent that case law “took a

[more] restrictive view” of the activities allowed by the CUA than the MMPA.

(Urziceanu, supra, at p. 785.)9

The MMPA seeks to “[e]nhance the access of patients and caregivers to medical

marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875,

9 “At the heart of the MMPA is a voluntary ‘identification card’ scheme that,

unlike the CUA—which . . . provides only an affirmative defense to a charge of

possession or cultivation—provides protection against arrest for those and related

crimes.” (People v. Kelly (2010) 47 Cal.4th 1008, 1014.)

24

§ 1(b)(3), pp. 6422-6423.) To this end, section 11362.775 of the MMPA 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 Section 11357 [possession of marijuana], 11358 [cultivation], 11359

[possession for sale], 11360 [transportation], 11366 [maintaining a place for the sale,

giving away or use of marijuana], 11366.5 [making available premises for the

manufacture, storage or distribution of controlled substances], or 11570 [abatement of

nuisance created by premises used for manufacture, storage or distribution of controlled

substances].”

The MMPA defines a “qualified patient” as “a person who is entitled to the

protections of [the CUA] but who does not have an identification card” issued pursuant to

the MMPA. (§ 11362.7, subd. (f).) The MMPA contains guidelines limiting the amount

of “dried marijuana” a qualified patient or qualified primary caregiver may possess and

the number of “mature” and “immature” plants these persons may maintain or cultivate

for the qualified patient (§ 11362.77) but, as applied, these limits cannot be less than the

amount of marijuana necessary to meet the qualified patient’s current medical needs.

(People v. Kelly, supra, 47 Cal.4th at pp. 1043-1049.)

The MMPA does not allow qualified patients, valid identification cardholders, or

their primary caregivers to earn a profit from the cultivation or distribution of medical

25

marijuana, whether through a cooperative, collective, or otherwise. Section 11362.765

states: “(a) 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

11357, 11358, 11359, 11360, 11366, 11366.5 or 11570. 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 cultivate or distribute marijuana for profit.” (Italics added.)10

Together, sections 11362.765 and 11362.775 of the MMPA plainly allow qualified

patients, valid identification cardholders, and their primary caregivers to pool their efforts

and resources to cultivate marijuana for the qualified patients and holders of valid

identification cards, in amounts necessary to meet the reasonable medical needs of the

10 Subdivision (b) of section 11362.765 states: “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

[§ 11358] 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.” Subdivision (c) of section 11362.765 states: “(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 [possession for sale] or 11360 [transportation].”

26

qualified patients and cardholders—without being subject to criminal sanctions for,

among other offenses, unlawful marijuana possession (§ 11357), cultivation (§ 11358), or

possession for sale (§ 11359)—provided they do not earn a profit from the cultivation,

distribution, or sale of the medical marijuana.

3. The Guidelines

Section 11362.81, subdivision (d) of the MMPA directs the California Attorney

General to “develop and adopt appropriate guidelines to ensure the security and

nondiversion of marijuana grown for medical use by patients qualified under the [CUA].”

In 2008, the California Attorney General, Edmund G. Brown, Jr., Department of Justice,

issued “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical

Use” (Guidelines). The Guidelines are not binding on the courts but are entitled to

“considerable weight.” (People v. Colvin (2012) 203 Cal.App.4th 1029, 1040, fn. 11;

People v. Hochanadel, supra, 176 Cal.App.4th at p. 1011.)

The Guidelines are intended to serve several purposes: “(1) ensure that marijuana

grown for medical purposes remains secure and does not find its way to non-patients or

illicit markets, (2) help law enforcement agencies perform their duties effectively and in

accordance with California law, and (3) help patients and primary caregivers understand

how they may cultivate, transport, possess, and use medical marijuana under California

law.” (Guidelines, p. 1, italics added.) The Guidelines observe: “Under California law,

medical marijuana patients and primary caregivers may ‘associate within the State of

27

California in order collectively or cooperatively to cultivate marijuana for medical

purposes.’ (§ 11362.775.)” (Guidelines, § IV, p. 8.)

In order to help cooperatives and collectives operate within the law, the Guidelines

require that “[a]ny group that is collectively or cooperatively cultivating and distributing

marijuana for medical purposes should be organized and operated in a manner that

ensures the security of the crop and safeguards against diversion for non-medical

purposes.” (Guidelines, § IV.A., p. 8.) A group organized as a nonprofit, agricultural

cooperative must comply with applicable provisions of the Corporations Code and the

Food and Agricultural Code. For example, the group must “file articles of incorporation

with the state and conduct its business for the mutual benefit of its members.”

(Guidelines, § IV.A.1., p. 8.)

Regarding collectives, which unlike cooperatives are neither statutorily defined

nor governed by statute, the Guidelines state: “California law does not define collectives,

but the dictionary defines them as ‘a business, farm, etc., jointly owned and operated by

the members of a group.’ [Citation.] Applying this definition, a collective should be an

organization that merely facilitates the collaborative efforts of patient and caregiver

members - including the allocation of costs and revenues. As such, a collective is not a

statutory entity, but as a practical matter it might have to organize as some form of

business to carry out its activities. The collective should not purchase marijuana from, or

sell to, non-members; instead, it should only provide means for facilitating or

coordinating transactions between members.” (Guidelines, § IV.A.2., p. 8.)

28

Cooperatives and collectives must be “Non-Profit Operation[s]” (Guidelines, § IV.B.1, p.

9) and “should acquire marijuana only from their constituent members, because only

marijuana grown by a qualified patient or his or her primary caregiver may lawfully be

transported by, or distributed to, other members of a collective or cooperative

(§§ 11362.765, 11362.775). The collective or cooperative may then allocate it to other

members of the group. Nothing allows marijuana to be purchased from outside the

collective or cooperative for distribution to its members. Instead, the cycle should be a

closed-circuit of marijuana cultivation and consumption with no purchases or sales to or

from non-members. To help prevent diversion of medical marijuana to non-medical

markets, collectives and cooperatives should document each member’s contribution of

labor, resources, or money to the enterprise. They should also track and record the

source of their marijuana.” (Guidelines, § IV.B.4., p. 10, italics added.)

In accordance with section 11362.765 of the MMPA, the Guidelines provide that

medical marijuana grown at a collective or cooperative may be “a) Provided free to

qualified patients and primary caregivers who are members of the collective or

cooperative; [¶] b) Provided in exchange for services rendered to the entity; [¶] c)

Allocated based on fees that are reasonably calculated to cover overhead costs and

operating expenses; or [¶] d) Any combination of the above.” (Guidelines, § IV.B.6.,

p. 10, italics added.) Thus, “[a]ny monetary reimbursement that members provide to the

collective or cooperative should only be an amount necessary to cover overhead costs and

operating expenses.” (People v. Hochanadel, supra, 176 Cal.App.4th at pp. 1010-1011.)

29

B. The Expert Testimony of the Defense Cannabis Expert Was Properly Limited

1. Background

William Britt was the executive director of the Association of Patient Advocates, a

grassroots organization he formed 15 years earlier to help persons with mental and

physical disabilities gain access to services and alternative treatments. He had a high

school education and “some training” and experience in accounting, but no medical,

legal, or horticultural degrees. He had spoken about medical marijuana to medical

professionals, law enforcement agencies, city councils, and other groups, and had

testified as a cannabis expert over 50 times in Los Angeles County. He was the only

cannabis expert whom the Los Angeles County Superior Court considered qualified to be

appointed to assist indigent criminal defendants in Los Angeles County. He had testified

as an expert on the particular issue of “compensation to growers” “at least 20, 30 times,”

and he was a medical marijuana patient himself.

The prosecution moved in limine to prevent Britt from testifying about the indicia

of lawfully operating medical marijuana collectives, their costs of cultivating marijuana,

and their methods of compensating their members for cultivation services performed for

the collective. At an Evidence Code section 402 hearing, Britt testified there were “[a]t

least a thousand” medical marijuana collectives in California. When asked how a

medical marijuana collective differs from a cooperative, if at all, Britt responded that

cooperatives are legally defined entities; they must have a board of directors and must

operate in accordance with certain rules. In contrast, collectives are not legally defined,

30

are “generally more loosely operated” than cooperatives, and “one collective can be very

different than another collective.”

Britt had heard of the Green Galleon collective in Malibu through advertisements

and through speaking to medical marijuana patients who may have been members of the

collective, but he knew nothing about its methods of operation. He did not know who ran

the collective, how many members it had, how the labor of running the collective was

divided among its members, or where or how the collective obtained its marijuana. His

understanding of defendant’s relationship with the collective was based entirely on

defendant’s representations; he had not spoken to anyone at the collective to verify

defendant’s membership or relationship with the collective. Britt agreed that, due to his

lack of knowledge about the Green Galleon’s methods of operation, he could not offer an

opinion whether it was operating as a lawful medical marijuana collective or not.

At the hearing on the in limine motion, defendant argued his lawful cultivation

defense was based on “how collectives operative” and “[w]hether or not services are

reimbursed.” Relying on Urziceanu, supra, 132 Cal.App.4th 747, he argued the law

allowed him to cultivate marijuana as a member of a collective and receive reasonable

compensation for his services. The trial court took a restrictive view of the permissible

scope of Britt’s testimony, and ruled he could not testify “regarding any salary or

reimbursement for participating as a marijuana grower or a collective . . . .” Relying on a

pre-MMPA case, Peron, supra, 59 Cal.App.4th 1383, the court ruled the subjects of

“compensation or salary, reimbursement” to members of a marijuana collective were “off

31

the table” because the law prohibited the sale or possession for sale of marijuana “even as

a nonprofit organization.”

As additional support for its ruling, the court noted there appeared to be “no set

rules” governing how medical marijuana collectives could lawfully operate, and a “great

variance” in the ways collectives operated. But the court found even “more troubling”

Britt’s admission that he lacked information concerning the Green Galleon’s methods of

operation and consequent inability to opine whether the collective was lawfully operating

under California’s medical marijuana laws. Given Britt’s lack of information about the

Green Galleon’s methods of operation, the prosecutor argued Britt would “speculate

wildly” about whether defendant was lawfully cultivating marijuana for the collective.

The court agreed, saying: “I don’t know how [Britt] can possibly opine what specifics

may have been related to their setup, their operation, their labor, their numbers, their

members, those types of things.” Based on his other qualifications, the court ruled Britt

could testify whether there were any indications defendant was selling marijuana or

possessed the 100 marijuana plants for sale. The court also ruled Britt could testify “as a

patient advocate” concerning defendant’s personal use of marijuana as a “pain

management” strategy, if a proper foundation were laid for that testimony.

In his subsequent testimony before the jury, Britt indicated his knowledge of

compensation and reimbursement for expenses incurred in cultivating medical marijuana

was based on his interviews of “hundreds if not thousands” of medical marijuana patients

concerning how, why, and when they used marijuana, and how they cultivated marijuana.

32

He had “visited numerous cultivation sites and collectives,” and had consulted with

attorneys, mostly defense attorneys.

The court sustained numerous prosecution objections and refused to allow Britt to

testify concerning compensation lawfully paid to and expenses reasonably incurred by

persons who grow marijuana for medical marijuana collectives. The court also ruled

Britt did not lay a sufficient evidentiary foundation to opine that the 100 marijuana plants

defendant was growing would produce no more marijuana than necessary to supply the

needs of a collective comprised of six medical marijuana patients. Nor was he qualified

to render any legal opinions, including on the legal distinctions between unlawful and

lawful marijuana cultivations. The court clarified: “If he wants to testify to his own

personal use, if he wants to testify, again, as to being a patient advocate with respect to

his personal knowledge about [defendant] and his purported use, he can go there. But he

is not to testify about these other issues that call for legal opinions on areas that are

outside and not relevant to our concern.”

Britt later testified that an average medical marijuana patient consumes about three

to six pounds of marijuana per year, and a collective would therefore need to produce 18

to 36 pounds of marijuana per year to supply marijuana for six members. When asked

how much usable marijuana defendant’s 100 marijuana plants would likely produce, Britt

testified that would be hard to determine because the yield from indoor-grown plants

depends greatly on the quantity and quality of the indoor lighting the plants receive.

Finally, Britt testified that in his experience it typically costs $3,000 to produce one

33

pound of marijuana, and the initial cost to establish a “seven-light grow setup” such as

defendant’s would be around $7,000 to $10,000.

2. Analysis

Defendant claims the court’s limitations on Britt’s expert testimony deprived him

of his due process right to present critical evidence on his lawful cultivation defense.

“Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions

must comport with prevailing notions of fundamental fairness.” (California v. Trombetta

(1984) 467 U.S. 479, 485.) This means that states must afford a defendant “a meaningful

opportunity to present a complete defense” to criminal charges. (Ibid.) A defendant is

denied that opportunity when the state is permitted “‘to exclude competent, reliable

evidence . . . when such evidence is central to the defendant’s claim of innocence,’”

absent a valid justification for excluding the evidence. (Montana v. Egelhoff (1996) 518

U.S. 37, 53, citing Crane v. Kentucky (1986) 476 U.S. 683, 690-691.)

But here, defendant does not identify what testimony Britt could have competently

given but was precluded from giving concerning his lawful cultivation defense. (Evid.

Code, § 801, subd. (b) [expert opinion testimony is limited to opinion based on matter

perceived by, personally known to, or made known to the expert at or before the

hearing].) Britt admitted he knew nothing about the Green Galleon collective’s methods

of operation, who ran it, how many members it had, how the labor of running it was

divided among its members, or how its members obtained marijuana. Britt had not

spoken to anyone at the collective to verify defendant’s membership in it or relationship

34

with it. Given his lack of personal knowledge or other information concerning its

operations, Britt agreed he could not competently opine that the Green Galleon collective

was lawfully operating as a medical marijuana collective under the MMPA. (See Evid.

Code, § 801, subd. (b).)

In addition, Britt lacked a sufficient evidentiary foundation to opine that defendant

was not earning an unlawful profit for cultivating the 100 marijuana plants for the

collective. (§ 11362.765, subd. (a) [persons may not profit from sale or distribution of

medical marijuana]; Guidelines, § IV.B.6., p. 10 [medical marijuana may be allocated

among members of medical marijuana collective or cooperative “based on fees that are

reasonably calculated to cover overhead costs and operating expenses”].) Defendant’s

statements to the officers and trial testimony did not provide the necessary evidentiary

foundation.

Though defendant denied telling Officer Rice he expected to earn a $20,000 “pure

profit” from his 100-plant marijuana grow, and he only expected to make money growing

marijuana “over a period of time,” he never explained how much he expected to earn

from his 100-plant grow and any additional “grows” for the collective. Nor did he

estimate the amount of time and effort he had invested and expected to invest in his 100-

plant grow and in his planned additional grows, or tie that amount of time and effort to

the amount of compensation he expected to earn for cultivating marijuana for his

collectve. (Guidelines, § IV.B.4., p. 10 [“[C]ollectives and cooperatives should

document each member’s contribution of labor, resources, or money to the enterprise.”].)

35

To be sure, defendant estimated he had invested $10,000 in his lights and other

growing equipment and he testified he expected to be reimbursed for that amount and his

other out-of-pocket costs and expenses incurred in growing the marijuana (e.g., his

electricity bills), in addition to being paid for the marijuana plants he was growing. But

there was no evidence tying the reasonable value of defendant’s cultivation services to

the amount of compensation he expected to be paid for his marijuana plants.

Accordingly, there was no evidentiary basis for Britt to opine defendant was not earning

an unlawful profit for cultivating and distributing—i.e., selling—his marijuana plants to

the collective. By the same token, Britt had no evidentiary basis to opine that the

$20,000 defendant told Officer Rice he expected to be paid for his 100 plants, when fully

grown, plus his out-of-pocket costs incurred in growing the plants, was reasonably

calculated to cover no more than his “overhead costs and operating expenses,” including

the reasonable value of his labor and services rendered in cultivating the plants.

(Guidelines, § IV.B.6., p. 10.)

Britt also lacked a sufficient evidentiary foundation to opine that the 100 plants

defendant was currently cultivating would produce no more marijuana than necessary to

supply the current medical needs of a collective comprised of six qualified patients,

including defendant. (§ 11362.77; People v. Kelly, supra, 47 Cal.4th at p. 1049.)

Although Britt testified an average medical marijuana patient consumes three to six

pounds of marijuana per year, and a collective comprised of six qualified patients would

need 18 to 36 pounds of marijuana per year, he could not estimate how much marijuana

36

defendant’s 100 plants would produce. He said the yield from indoor-grown plants

depends greatly on the quantity and quality of indoor lighting the plants receive, and he

had no evidence about the quantity or quality of lighting the 100 plants were receiving.

Thus, by his own admission, Britt could not reasonably estimate the amount of marijuana

defendant’s 100 plants would produce, or whether that amount exceeded 18 to 36 pounds

per year, the amount he indicated was necessary to meet the reasonable medical needs of

six average qualified patients.11

Defendant criticizes the court’s reliance on the pre-MMPA case, Peron, in ruling

Britt could not testify on the subjects of “compensation or salary, reimbursement” to

qualified patients of a medical marijuana collective in exchange for their services

rendered and costs incurred in cultivating marijuana for the collective. Peron correctly

pointed out that the CUA does not allow marijuana to be sold, even “on an allegedly

nonprofit basis.” (Peron, supra, 59 Cal.App.4th at p. 1392.) Still, we agree the court’s

reliance on Peron was misplaced.

The MMPA abrogated Peron and other pre-MMPA cases to the extent the cases

construed the CUA more restrictively than the subsequently-enacted MMPA allows.

11 It is unclear from the record whether the Green Galleon collective was

comprised of six members, as defendant indicated, or whether defendant only knew of six

members, including himself, and the collective actually had many more members. It

appears from Britt’s testimony that the collective had many more members, but there was

no solid, reliable evidence that it did. Britt had only heard of the collective through

advertisement and by speaking with persons he said may have been members, but he did

not know how many members it had. Thus, the only competent evidence presented was

that the collective was comprised of six persons, including defendant.

37

(Urziceanu, supra, 132 Cal.App.4th at p. 785.) The MMPA and the Guidelines allow

nonprofit groups comprised of qualified patients, valid medical marijuana identification

cardholders, and their respective primary caregivers, if any, to pay each other and receive

compensation and reimbursement from each other in amounts necessary to cover the

“overhead costs and operating expenses” incurred in cultivating and providing medical

marijuana to qualified patient members of the group. (§§ 11362.765, 11362.775;

Guidelines, § IV.)

As defendant points out, appellate court decisions issued following his August

2012 trial have acknowledged, at least implicitly, that the MMPA and the Guidelines

allow qualified patients and persons holding valid identification cards to be paid

reasonable compensation for cultivating marijuana for other qualified patients. (See, e.g.,

People v. Jackson (2012) 210 Cal.App.4th 525, 537 [the Guidelines “appear to

contemplate that collectives and cooperatives will dispense [i.e., sell] marijuana and that

that there will be an exchange of cash consideration”]; People ex rel. City of Dana Point

v. Holistic Health (2013) 213 Cal.App.4th 1016, 1020, 1026-1027 [summary judgment

against marijuana dispensary for nuisance abatement and illegal business practices

improper where substantial evidence showed dispensary was operating as nonprofit

enterprise]; People v. Colvin, supra, 203 Cal.App.4th at p. 1039 [not all members of

38

medical marijuana cooperative or collective must participate in cultivating marijuana for

other members].)12

Nevertheless, Jackson, Colvin, and Holistic Health do not assist defendant’s claim

that the court erroneously limited Britt’s expert testimony. Notwithstanding its misplaced

reliance on Peron, the court did not abuse its discretion in refusing to allow Britt to offer

his expert opinion that defendant was only earning reasonable compensation and was not

earning an unlawful profit on his 100-plant medical marijuana grow. (People v.

Gutierrez (2009) 45 Cal.4th 789, 828 [court’s decision to exclude evidence is reviewed

for an abuse of discretion]; Lent v. Tillson (1887) 72 Cal. 404, 422 [a court abuses its

discretion when it fails to follow the law and apply appropriate criteria in determining the

admissibility of evidence].) As discussed, Britt had no evidentiary foundation to offer

that opinion, and he admitted he could not competently opine that the Green Galleon

collective was lawfully operating under state law.

12 We agree with the observation in People ex rel. Trutanich v. Joseph (2012) 204

Cal.App.4th 1512, 1523 that: “Section 11362.765 allows reasonable compensation for

services provided to a qualified patient or person authorized to use marijuana,” but we

disagree with the qualifying phrase, “but such compensation may be given only to a

‘primary caregiver.’” (Ibid., italics added.) Nothing in section 11362.765 or the

Guidelines indicates that only primary caregivers may receive reasonable compensation

for cultivating marijuana for a nonprofit group of qualified medical marijuana patients.

Rather, groups comprised solely of qualified patients may grow medical marijuana for

each other, provided they do not earn a profit on their cultivation services rendered or

their expenses incurred. (§ 11362.765.)

39

C. Insufficient Evidence Supported Defendant’s Lawful Cultivation Defense

Defendant claims he was denied a fair trial because the court misinstructed the

jury on his lawful cultivation defense under the MMPA. We agree the instructions did

not accurately state the law applicable to defendant’s defense that he was lawfully

cultivating marijuana under the MMPA. Nevertheless, the errors were not prejudicial

because the evidence was insufficient to raise a reasonable doubt defendant was not

earning a profit on his medical marijuana cultivation operation.

1. The Relevant Instructions

The jury was instructed that unlawful possession of marijuana (§ 11357) was a

lesser included offense to the unlawful cultivation (§ 11358) and possession for sale

(§ 11359) charged in counts 1 and 2, respectively. In substantially similar language, the

jury was instructed on how defendant’s lawful cultivation defense applied to the unlawful

cultivation and possession for sale charges.

On how the lawful cultivation defense applied to the unlawful cultivation charge

in count 1, the jury was instructed: “Possession or cultivation of marijuana is lawful if

authorized by the [CUA]. The [CUA] allows a person to possess or cultivate marijuana

(for personal medical purposes or as the primary caregiver of a patient with a medical

need) when a physician has recommended or approved such use. The amount of

marijuana possessed or cultivated must be reasonably related to the patient’s current

medical needs. The People have the burden of proving beyond a reasonable doubt that

the defendant was not authorized to possess or cultivate marijuana for medical purposes.

40

If the People have not met this burden, you must find the defendant not guilty of this

crime. [¶] A primary caregiver is someone who has consistently assumed responsibility

for the housing, health, or safety of a patient who may legally possess or cultivate

marijuana.” (CALCRIM No. 2370.)

On how the lawful cultivation defense applied to the possession for sale charge in

count 2, the jury was instructed: “Possession of marijuana is lawful if authorized by the

[CUA]. The [CUA] allows a person to possess marijuana for personal medical purposes

or as the primary caregiver of a patient with a medical need when a physician has

recommended or approved such use. The amount of marijuana possessed must be

reasonably related to the patient’s current medical needs. The People have the burden of

proving beyond a reasonable doubt that the defendant was not authorized to possess the

marijuana for medical purposes. If the People have not met this burden, you must find

the defendant not guilty of this crime. [¶] A primary caregiver is someone who has

consistently assumed responsibility for the housing, health, or safety of a patient who

may legally possess or cultivate marijuana.” (CALCRIM No. 2375.)

The court further instructed the jury in the language of section 11263.775:

“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 11357, 11358, 11359, 11360, 11366, 11366.5 or 11570. [¶] You

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have heard evidence that the defendant possessed a valid medical marijuana

recommendation from a physician. [¶] Simple possession of marijuana is lawful under

the [CUA] and the [MMPA] if a person has a valid physician’s recommendation.

Possession for sale, and the actual sale of marijuana is not lawful even if a person has a

valid medical marijuana recommendation from a physician. [¶] The People have the

burden of proving beyond a reasonable doubt that the defendant possessed marijuana

with the intent to sell.” (Italics added.)

The jury was further instructed on a mistake of fact defense: “The defendant is

not guilty of possession for sale of marijuana if he did not have the intent or mental state

required to commit the crime because he reasonably did not know a fact or reasonably

and mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful

under the facts as he reasonably believed them to be, he did not commit possession for

sale of marijuana. If you find the defendant believed that he was being reimbursed by a

co-op or a collective and if you find that belief was reasonable, he did not have the

specific intent or mental state required for possession for sale of marijuana. [¶] If you

have a reasonable doubt about whether the defendant had the specific intent or mental

state required for possession for sale of marijuana, you must find him not guilty of that

crime.” (CALCRIM No. 3406.)

2. Analysis

We review a court’s instructions de novo to determine whether they correctly state

the law or effectively direct a finding adverse to the defendant by removing an issue from

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the jury’s consideration. (People v. Posey (2004) 32 Cal.4th 193, 218.) “Our task is to

determine whether the trial court ‘“fully and fairly instructed on the applicable law.”

[Citation.]’ [Citation.]” (People v. Lopez (2011) 198 Cal.App.4th 698, 708.) In

determining whether the jury was fully and fairly instructed on the applicable law, we

consider the instructions as a whole and each in light of the others. (People v. Moore

(2011) 51 Cal.4th 1104, 1140.) We also consider the entire trial record, including the

arguments of counsel, and assume the jurors understood and correlated all of the

instructions. (People v. Lopez, supra, at p. 708.)

The instructions did not accurately state the law supporting defendant’s lawful

cultivation defense, essentially because the instructions were based on the CUA, not the

MMPA. The CUA does not contemplate the lawful cultivation or sale of medical

marijuana through nonprofit organizations. Instead, it allows a patient and his or her

primary caregiver to grow or possess marijuana solely for the patient’s medical purposes,

and for no other persons or groups of persons. (Urziceanu, supra, 132 Cal.App.4th at p.

768.) In contrast, the MMPA allows qualified patients, valid identification cardholders,

and their respective primary caregivers, if any, to form nonprofit groups, and through

those groups, pay each other and receive compensation and reimbursement from each

other in amounts necessary to cover the “overhead costs and operating expenses” of

cultivating and providing medical marijuana to the qualified patient and valid cardholder

members of the group. (§§ 11362.765, 11362.775; Guidelines, § IV; see People v.

Jackson, supra, 210 Cal.App.4th at p. 537 [MMPA does not limit number of qualified

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patient members a medical marijuana cooperative or collective may have]; People v.

Colvin, supra, 203 Cal.App.4th at p. 1039 [not all members of cooperative or collective

must participate in cultivating marijuana for other members].)

The instructions erroneously told the jury that in order to find defendant was

lawfully cultivating the 100 marijuana plants—and was therefore not guilty of unlawful

cultivation (§ 11358) or possession for sale (§ 11359)—it had to find he was either the

primary caregiver for the other alleged five members of the Green Galleon collective or

was growing no more marijuana than necessary for his own medical use. In this respect,

the instructions comported with the CUA but were contrary to the MMPA.

The instructions also erroneously stated: “Possession for sale, and the actual sale

of marijuana is not lawful even if a person has a valid medical marijuana

recommendation from a physician.” (Italics added.) Though nothing in the MMPA

allows any individual or group to cultivate or distribute marijuana for profit

(§ 11362.765, subd. (a)), the Guidelines allow marijuana grown through a nonprofit

collective or cooperative to be “[a]llocated based on fees that are reasonably calculated to

cover overhead costs and operating expenses[.]” (Guidelines, § IV.B.6., p. 10; see also

§ 11362.775.)

Nothing in the other instructions or the arguments of counsel cured these

instructional errors. Nonetheless, there was insufficient evidence to support defendant’s

lawful cultivation defense; thus, defendant was not entitled to instructions on the defense.

When a defendant claims he or she was lawfully cultivating marijuana under the MMPA

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(§§ 11362.765, 11362.775) as a defense to marijuana-related charges including unlawful

cultivation (§ 11358) and possession for sale (§ 11359), the defendant has the burden of

producing evidence sufficient to raise a reasonable doubt of his guilt. (People v. Mower,

supra, 28 Cal.4th at pp. 476-482; People v. Jackson, supra, 210 Cal.App.4th at p. 533.)

The trial court is required to instruct sua sponte on a defense only if substantial evidence

supports it, the defendant is relying on it, and it is consistent with the defendant’s theory

of the case. (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)

People v. Solis (2013) 217 Cal.App.4th 51 is instructive. Solis and other

defendants operated a 1,700-member medical marijuana dispensary, the Healing Center

(THC), out of a storefront in Santa Barbara. THC was not registered as nonprofit.

Several of its customers reported they became members by filling out a form, and they

had no involvement with the dispensary other than purchasing marijuana there. (Id. at p.

54.) In one year, Solis received $80,000 in income from THC and spent it on family

expenses and entertainment. He purchased marijuana from unidentified sources and

resold it to the dispensary for double the price he paid. Other venders also sold marijuana

to THC, and Solis knew some of those vendors used false names to avoid “legal

problems.” Police tracked down one vendor who was not a member of the dispensary.

(Id. at pp. 54-55.)

The trial court rejected Solis’s MMPA defense in a bench trial, finding there was

insufficient evidence to raise a reasonable doubt whether THC was operating on a

nonprofit basis. (People v. Solis, supra, 217 Cal.App.4th at p. 56.) The court reasoned in

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part: “Monetary reimbursement that members provide to [a] collective or cooperative is

limited to an amount necessary to cover overhead costs and operating expenses.

[Guidelines, § IV.B.6., p. 10.] Defendants have provided no evidence of actual overhead

costs or expenses that had to be reimbursed. Rather, the reimbursement amount or, as

Solis described it, pricing was simply double the amount [THC] paid for [the]

marijuana.” (Ibid.) The trial court also found there was no evidence that THC members

“pooled money” to collectively grow marijuana, and no evidence that the monies paid to

THC went into collective cultivation of marijuana. To the contrary, the evidence showed

the revenues went to vendors, many of whom were unknown and two of whom were not

members of THC, and to Solis for his “entertainment and living expenses.” (Ibid.)

The trial court found Solis guilty of possessing marijuana for sale (§ 11359) and a

misdemeanor count of selling or transporting marijuana (§ 11360, subd. (a); People v.

Solis, supra, 217 Cal.App.4th at p. 54). The appellate court agreed there was insufficient

evidence to support Solis’s MMPA defense that he was lawfully cultivating marijuana for

a nonprofit collective, and affirmed the judgment. (People v. Solis, supra, at p. 59.)

Here, too, the evidence supporting defendant’s lawful cultivation defense fell short

of raising a reasonable doubt that defendant was lawfully cultivating and lawfully

possessing marijuana for sale, on a nonprofit basis, to a lawfully operating marijuana

collective. First, there was insufficient evidence that the Green Galleon collective was

lawfully operating a nonprofit medical marijuana collective comprised solely of qualified

patients, valid identification cardholders, or their primary caregivers. (§§ 11362.765,

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11362.775; Guidelines, § IV.) With the exception of defendant, there was no evidence

that any of the collective’s other five members were qualified patients. (§ 11362.7, subd.

(f).) Nor was there any evidence that the collective was registered, organized, or

operating as a nonprofit organization (see Guidelines, § IV.A.2., p. 8) or that it was

organized with sufficient structure to ensure nondiversion of marijuana to illicit markets

(Guidelines, § IV.B., pp. 9-11). Defendant testified that half of the marijuana he

harvested from his 100-plant grow would be given to his cousin Miller, the person from

the collective who provided him with the 100 “clone” plants, but there was no evidence

that any of the marijuana harvested from defendant’s grow would be given for free or

sold, on a nonprofit basis, solely to qualified patient members of the collective.

Lastly, defendant asserts a “clear and accurate instruction stating a medical

marijuana patient is entitled to reimbursement an[d] compensation for cultivating for the

collective was required.” We disagree. Such an instruction would have been too broadly

worded and therefore misleading, because it would not have limited the amount of

permissible reimbursement to the amount of out-of-pocket costs incurred in cultivating

the marijuana, nor would it have limited the amount of permissible compensation to the

reasonable value of the cultivation services rendered. Under the MMPA, a qualified

patient or valid identification cardholder is entitled to receive only reasonable

compensation for his labor or services rendered in cultivating medical marijuana for other

qualified patient members of his nonprofit group, plus reimbursement for his out-of-

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pocket expenses incurred, but he may not earn a profit from growing medical marijuana.

(§ 11362.765; Guidelines, § IV.B.1., B.6., pp. 9-10.)

V. DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

KING

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.

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