People v. Anderson

Filed 1/9/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F066737

Plaintiff and Respondent,

(Super. Ct. No. CRF36522)

v.

JERRY TRENT ANDERSON, OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tuolumne County. James A.

Boscoe, Judge.

Ean Vizzi and Amanda Millea for Defendant and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy

Attorney General, for Plaintiff and Respondent.

-ooOoo-

Defendant Jerry Trent Anderson was convicted of one count of cultivating

marijuana. His contentions in this appeal are: (1) the court failed to instruct the jury

correctly on Anderson’s defense under the medical marijuana laws; and (2) evidence of

the marijuana should have been excluded, and the information dismissed, because the

police did not adhere to statutory evidence-preservation requirements when they

destroyed all but some samples of the plants they seized from Anderson’s property.

We agree with the first argument and will reverse. The jury instructions failed to

explain clearly the defense potentially available to Anderson under Health and Safety

Code section 11362.775, which legalizes the operation of cooperatives and collectives for

cultivation of marijuana by groups of patients. Specifically, the instructions did not make

it clear that a lawful cooperative or collective can consist of some patient members who

grow marijuana and other patient members who compensate the growers with money in

exchange for marijuana. In light of the evidence, the arguments made to the jury by

counsel, and the fact that there was a splintered verdict (consisting of a conviction on one

count, an acquittal on another, and a hung jury on a third), we conclude it is reasonably

probable that this deficiency in the instructions confused the jury and affected the

outcome.

We reject the second argument. Anderson has failed to show that any error in the

evidence-preservation procedures was prejudicial.

FACTS AND PROCEDURAL HISTORY

In 2011, Detective Eric Erhardt of the Tuolumne County Sheriff’s Department was

investigating a marijuana dispensary called Foothill Care Collective. The sheriff’s

department raided the dispensary on May 25, 2011, and closed it. The dispensary’s

principals were convicted of offenses pursuant to plea agreements.1 In the course of the

investigation, Detective Erhardt found business records indicating that Anderson sold

marijuana with a value of $3,000 through the dispensary on consignment in 2010 and

1 This court subsequently reversed those convictions on procedural grounds,

permitted the defendants to withdraw their pleas, and remanded the cases to the superior

court. (People v. Schuller (Nov. 21, 2013, F064799) [nonpub. opn.], 2013 Cal.App.

Unpub. LEXIS 8391 (Schuller); People v. Brisco (Nov. 25, 2013, F064802) [nonpub.

opn.], 2013 Cal.App. Unpub. 8509 (Brisco).)

2.

2011. The sheriff’s department conducted aerial surveillance of Anderson’s property and

saw marijuana growing there.

On August 23, 2011, deputies searched Anderson’s property pursuant to a search

warrant. They removed 187 growing marijuana plants from the ground. Inside the house,

they found concentrated cannabis in powder and liquid forms, some rolled marijuana

cigarettes, and about 25 bags and jars each containing about an ounce of dried marijuana.

One room contained a “grow light” and some rings where pots apparently had been,

indicating that the marijuana plants might have been started there. Also found were

approximately $50 in cash on the kitchen table and $970 in cash in Anderson’s pocket.

Three loaded handguns were found in the bedroom, as well as a shotgun and two rifles.

Two more rifles were in a closet in the living room.

Posted outdoors near the marijuana plants were two medical recommendations for

marijuana use. One was for Anderson and the other was for Jason Roberts, Anderson’s

son-in-law. The recommendation for Anderson stated that he could have “more than

eight oz and up to 99 plants.” The recommendation for Roberts stated that Roberts could

have “up to 99 … mature flowering cannabis plants and … up to 5 … pounds dried

cannabis flowers.” Detective Erhardt, however, believed the marijuana could not be

legitimate medical marijuana because the quantity was too large, there was packaged

marijuana, and there had been sales to the dispensary.

The sheriff’s department seized all the money in Anderson’s personal bank

account and the bank account Anderson used for his plumbing business, which had

revenue of $120,000 to $190,000 per year. None of the money had been returned at the

time of trial.2 According to Detective Erhardt, 60 percent of the forfeited assets would be

retained by the sheriff’s department and 10 percent by the district attorney’s office.

2After trial, as part of a plea agreement to resolve the mistried count 2, the parties

agreed that Anderson would forfeit $8,000 of the seized funds and the remainder,

$6,743.12, would be returned.

3.

The district attorney filed a complaint, which was later deemed an information,

alleging three counts: (1) cultivating marijuana (Health & Saf. Code, § 11358);3

(2) possession of marijuana for sale (§ 11359); and (3) possession of concentrated

cannabis (§ 11357, subd. (a)). In connection with each count, the complaint alleged for

purposes of sentence enhancement that Anderson was armed with three handguns. (Pen.

Code, § 12022, subd. (a)(1).)

Before trial, Anderson filed a motion to dismiss pursuant to Penal Code

section 1385. The motion argued that the sheriff’s department had destroyed all the

marijuana except for samples and, in taking the samples, had failed to comply with Health

and Safety Code section 11479.

Section 11479 provides:

“Notwithstanding Sections 11473 and 11473.5, at any time after seizure by

a law enforcement agency of a suspected controlled substance, that amount

in excess of 10 pounds in gross weight may be destroyed without a court

order by the chief of the law enforcement agency or a designated

subordinate. Destruction shall not take place pursuant to this section until

all of the following requirements are satisfied:

“(a) At least five random and representative samples have been taken, for

evidentiary purposes, from the total amount of suspected controlled

substances to be destroyed. These samples shall be in addition to the 10

pounds required above. When the suspected controlled substance consists

of growing or harvested marijuana plants, at least one 10 pound sample

(which may include stalks, branches, or leaves) and five representative

samples consisting of leaves or buds shall be retained for evidentiary

purposes from the total amount of suspected controlled substances to be

destroyed.

“(b) Photographs have been taken which reasonably demonstrate the total

amount of the suspected controlled substance to be destroyed.

3 Subsequent statutory references are to the Health and Safety Code unless

indicated otherwise.

4.

“(c) The gross weight of the suspected controlled substance has been

determined, either by actually weighing the suspected controlled substance

or by estimating that weight after dimensional measurement of the total

suspected controlled substance.

“(d) The chief of the law enforcement agency has determined that it is not

reasonably possible to preserve the suspected controlled substance in place,

or to remove the suspected controlled substance to another location. In

making this determination, the difficulty of transporting and storing the

suspected controlled substance to another site and the storage facilities may

be taken into consideration.

“Subsequent to any destruction of a suspected controlled substance pursuant

to this section, an affidavit shall be filed within 30 days in the court which

has jurisdiction over any pending criminal proceedings pertaining to that

suspected controlled substance, reciting the applicable information required

by subdivisions (a), (b), (c), and (d) together with information establishing

the location of the suspected controlled substance, and specifying the date

and time of the destruction. In the event that there are no criminal

proceedings pending which pertain to that suspected controlled substance,

the affidavit may be filed in any court within the county which would have

jurisdiction over a person against whom those criminal charges might be

filed.”

Anderson’s motion argued that the People’s response to his informal discovery

request revealed inadequate compliance with this statute. Anderson stated that the

samples listed in the police report were never provided to the defense; the photographs

taken were too small and did not show all the plants seized; and the method used to weigh

the seized plants was not disclosed. The affidavit filed by the sheriff’s department

pursuant to section 11479 stated that 187 plants were seized, weighing “approximately

150 pounds gross wet weight including stalks,” and that the same day, 174 plants

weighing approximately 142 pounds were destroyed “at a remote location.” This

affidavit did not include any recitations about samples or photographs, did not state that

the sheriff had made a determination that it was not reasonably possible to preserve the

evidence, and did not say whether the weight was determined by weighing or measuring.

Anderson argued that the sheriff’s department’s noncompliance was prejudicial because it

5.

prevented a determination of the quality, sex and maturity of the plants, which in turn

prevented a determination of the quantity of usable marijuana that could be prepared from

them. This would undermine his ability to raise a reasonable doubt about whether the

quantity in his possession exceeded a reasonable amount for medical use by an individual

or a collective.

The People’s opposition to the motion stated that five random samples and an

estimated 10-pound sample consisting of eight plants were taken in accordance with

section 11479. The photographs of the plants “reasonably demonstrated the total .…”

The samples “are available to the defendant for whatever purpose he requires.” If the

pictures were too small, Anderson could enlarge them, and he would be given access to

the sheriff’s department’s computer system to do so. Further, the appropriate remedy for

a prejudicial failure to comply with section 11479 was suppression of evidence, not

dismissal of the information. The opposition also remarked that, at the time of his arrest,

Anderson expressed the “mistaken belief that it was legal to sell marijuana to

dispensaries.”

At the hearing on the motion, Anderson argued that the prosecution had the burden

of demonstrating compliance with section 11479 and had not shown that the samples

were representative. The People argued that they believed they had complied. No

evidence was presented at the hearing. The court denied the motion without explanation.

At trial, Anderson testified that he was 53 years old, was a licensed plumbing

contractor, and had spent his working life operating his plumbing business. He had a

number of health issues arising from accidents. In 1985, he was electrocuted and suffered

burns, nerve damage, and brain damage. He was unable to work for five years after this

accident. He was in car accidents in 1997 and 2008. In the second of these, he suffered a

brain injury, a compression injury to his chest affecting a number of internal organs, and

injuries to his back, hip, knees, and feet. After the 2008 car accident, he decided to try

medical marijuana for back pain and muscle cramps related to his injuries. He obtained a

6.

physician’s recommendation for medical marijuana in 2008, and it remained current at the

time of trial.

Dr. Daniel Shadoan, Anderson’s physician, testified. He said that, in addition to

injuries caused by accidents, Anderson had a genetic rheumatological autoimmune

condition called ankylosing spondylitis. This was Anderson’s primary medical issue.

The condition causes pain and stiffening of the joints and can lead to fusion of the spine.

The conventional treatment of this condition employs medications that suppress the

immune system and can cause severe side effects. Dr. Shadoan provided ongoing

osteopathic treatment for Anderson’s condition. He was not involved with Anderson’s

use of medical marijuana and was not the doctor who issued Anderson’s marijuana

recommendation, but he acknowledged that marijuana had helped with Anderson’s pain

and also alleviated the severe insomnia which he had suffered since the electrical shock.

Anderson testified about the intended uses of the growing plants and the processed

marijuana found on the property. He said he was in the process of forming a medical

marijuana collective for himself, his domestic partner Susan Silva, his son-in-law Jason

Roberts, and two other men. Thirty other people planned to join “as soon as we became

official.” Anderson planned to provide the marijuana from the plants to himself and Silva

and then to the other collective members if there was enough. Incorporation of the

collective was completed a week after Anderson’s arrest.

The processed and packaged marijuana found in the house was from previous

years and was for Anderson and Silva. Anderson usually ground his marijuana into

powder and placed it in capsules for swallowing because he did not like the feeling of

intoxication that comes from smoking. He used about two ounces a week. The

concentrated cannabis had come from a collective in San Francisco, and Anderson used it

for severe attacks of pain and stiffness. Regarding the guns, Anderson testified that all of

them were registered, that he had had a hunting license every year since he was 16, and

7.

that he kept some of them loaded because he had problems with bears, coyotes, and other

wild animals on the property. The guns were not used to further marijuana cultivation.

Anderson testified that he consigned marijuana to Foothill Care Collective and

received $3,000 for it. He said he did this because his medical recommendation at the

time allowed him to keep only five pounds. When his plants produced more than five

pounds of processed marijuana, he consigned the excess to the collective, believing that

he was doing so lawfully.

Daniel Welsh, Jeremy Caswell, Anthony Chastain, Silva, and Roberts all testified

about their connections with the marijuana. Welsh testified that Anderson was growing

some of the marijuana for Welsh’s medical use. He had a physician’s recommendation

for marijuana and he expected Anderson’s plants would supply his needs of one-half

ounce to one ounce per week for a year. He was not going to buy the marijuana from

Anderson, but instead planned to reimburse him for his costs. He did not help grow the

plants.

Caswell testified that he understood Anderson was forming “a co-op” and he

planned to join it once it was formed. Caswell had a physician’s recommendation for

marijuana use. He had never bought marijuana from Anderson. He assumed he would

reimburse Anderson for costs when the co-op was established.

Chastain testified that he and Anderson were planning to form a lawful medical

marijuana co-op together and that it was going to be called the Billy Redfish Care

Collective. Chastain’s role would be “to manage the crew, deal with the employees,”

meaning the people who would work in the store, while Anderson handled the cultivation.

He and Anderson had researched the law, investigated possible types of corporate entities

to use, and begun looking for a building and insurance. Their first discussions took place

two or three years before the seizure but did not lead to the actual efforts just described

until August 2011, the month when the seizure took place. The efforts came to a halt

when Anderson was arrested. Some of the seized marijuana was to be used to stock the

8.

collective, but Chastain was not involved in the growing of it and had not obtained any

marijuana from Anderson. He was not a medical marijuana patient. His understanding of

the business side of a medical marijuana collective was that it had to be organized as a

nonprofit corporation and could not earn profit, but that employees could receive wages

and collective members could receive some form of proceeds.

Silva, 66 years old at the time of trial, was a medical marijuana patient, though she

allowed her physician’s recommendation to lapse between April 2011 and August 2011.

She used marijuana to treat neck pain and pain related to multiple surgeries. She did not

help grow Anderson’s plants, but she intended to use some of the marijuana that they

would yield and expected that her needs would be supplied from the yield for 10 months

to a year. The processed marijuana found in the house was partly for her use as well. She

had never purchased marijuana from Anderson. She sometimes purchased marijuana

from a dispensary in San Francisco. As far as she knew, the total number of plants

growing in the yard was within the sum of the two, 99-plant limits of Anderson’s and

Roberts’s medical recommendations.

Roberts testified that he was a medical marijuana patient with a physician’s

recommendation to use marijuana. Half the plants Anderson was growing at the time of

the seizure were for his use. Anderson also had grown about 20 marijuana plants for

Roberts’s medical use the previous year. Roberts had once or twice come to the property

to help in planting and tending the plants. He supplied some cloned plants to start the

crop that was seized. He believed the half of the plants that were not for him were for the

collective Anderson was starting.

Documents relating to the formation of the collective were found in the house by

the deputies. There was a form from the California Secretary of State for forming a

nonprofit corporation, a business card reading “Billy Redfish, vendor, delivery co-op,”

and some papers for registering a domain name that included the words Billy Redfish.

9.

Jason Brisco testified about Foothill Care Collective. Foothill Care Collective was

a collective formed to cultivate and distribute medical marijuana. Brisco was president of

the corporation and administrator of the collective. Anderson was a member. The

collective was formed in 2009 or 2010 and had a city business license, a state seller’s

permit, and a federal employer identification number. The membership included patient

users, patient growers, and patients’ primary caregivers. Members had to submit written

membership applications. Prices set for marijuana provided for sale by grower members

were based on the grower’s costs plus reasonable compensation for his or her time. Sales

of grower members’ marijuana were conducted pursuant to consignment agreements, like

the one between the collective and Anderson. The collective was a nonprofit entity. All

income was paid to growers or used to pay building rent and other business expenses. No

marijuana was sold to nonmembers, and members signed an agreement not to resell

marijuana to nonmembers.

Foothill Care Collective was raided and closed by the sheriff’s department on

May 25, 2011. As noted above, its principals were prosecuted and two of them (Brisco

and Rhett Schuller) were convicted pursuant to plea agreements. Brisco testified that he

and Schuller agreed to plead no contest in exchange for the dismissal of charges against

Brisco’s father and the corporation’s secretary.

This court reversed the convictions of Brisco and Schuller because the plea

agreements included a reservation of the right to appeal from the trial court’s pretrial

ruling that they were not entitled to jury instructions on defenses under California’s

medical marijuana laws. This reservation rendered the agreements invalid. It was beyond

the power of the trial court to bargain with them to preserve, for appellate purposes,

issues that were eliminated by their guilty pleas as a matter of law. (Brisco, supra, 2013

Cal.App. Unpub. LEXIS 8509 at p. *11; Schuller, supra, 2013 Cal.App. Unpub. LEXIS

8391 at p. *11.) We remanded with directions to allow Brisco and Schuller to withdraw

their pleas. (Brisco, supra, at p. *13; Schuller, supra, at p. *13.)

10.

As in this case, the defense involved protections for those who form collectives or

cooperatives to cultivate and distribute marijuana. We did not reach the question of

whether Brisco and Schuller were entitled to instructions on this defense (Brisco, supra,

2013 Cal.App. Unpub. LEXIS 8509 at p. *3; Schuller, supra, 2013 Cal.App. Unpub.

LEXIS 8391 at p. *3), although a concurring opinion concluded that the trial court was

mistaken in its view that the defense was available only to primary caregivers (Brisco,

supra, at pp. *20-24 (conc. opn. of Gomes, J.); Schuller, supra, at pp. *20-24 (conc. opn.

of Gomes, J.).)

Anderson’s marijuana expert, Christopher Conrad, testified about the quantity of

usable marijuana the seized plants were likely to have yielded. He explained that male

plants do not produce usable medical marijuana, and usable marijuana generally comes

from the mature flowers of a female plant, although some usable product can sometimes

be derived from leaves. Based on his examination of the photographs taken by the

sheriff’s department, Conrad concluded that most of the plants were not mature and that

the sex characteristics they would exhibit were not yet determined. Most of them,

however, would probably turn out to be female. He could not tell from the photographs

how many plants were flowering. The yield of the plants would be affected by the fact

that the garden was crowded and the plants blocked the sunlight from each other. Insects

and mold would take a portion of the crop. Conrad did not inspect the sample plants

preserved by the sheriff’s department.

Based on the reported weight of the removed plants, using a formula employed by

the Drug Enforcement Administration, and taking account of additional growth of the

immature plants and likely insect and mold losses, Conrad opined that the garden would

probably have yielded 10 to 12 pounds of usable medical marijuana. Anderson’s own

estimate was five to eight pounds. Conrad testified that a single patient using marijuana

on an ongoing basis might use as little as three pounds or as much as nine pounds in a

year.

11.

Conrad also opined that the quantity of processed marijuana found in the house

was consistent with medical use for one to five people. The packaging of small quantities

was consistent with use by a collective, as it is easier to keep track of how much each

member has used if the collective’s supply is divided into small quantities. Marijuana

also keeps longer if it is packaged and stored in smaller quantities. The concentrated

forms found in the house also were consistent with medical use. The evidence of sale via

consignment to a dispensary was consistent with cultivation or possession for a medical

purpose, as dispensaries generally require proof of medical marijuana patient status from

both buyers and sellers. Similarly, the evidence of efforts to form a corporate entity was

indicative of intent to cultivate for medical purposes, as an illegal commercial grower

would have no reason to incorporate. Further, a commercial grower would be unlikely to

take a check, as Anderson had taken from Foothill Care Collective. There also were no

pay-owe sheets, no complaints about foot traffic at the house, and no evidence of any

selling or providing of marijuana to nonpatients.

Rebutting Conrad’s testimony, Detective Erhardt opined that the seized plants

could yield at least half a pound of processed marijuana per plant, which would be more

than 90 pounds of processed marijuana and nearly 10 times Conrad’s estimate.

The jury instruction on cultivating marijuana stated that Anderson was guilty of

that offense if the prosecution proved that he unlawfully cultivated one or more marijuana

plants and knew that they were marijuana plants. The instruction further stated:

“Possession or cultivation of marijuana is lawful if authorized by the

Medical Marijuana Laws. The Medical Marijuana Laws allow a person to

possess or cultivate marijuana for personal medical purposes when a

physician has recommended or approved such use. The amount of

marijuana possessed or cultivated must be reasonably related to the

patient’s current medical needs. The People have the burden of proving

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

or cultivate marijuana for medical purposes. If the People have not met this

burden, you must find the defendant not guilty of this crime.”

12.

Additional instructions on Anderson’s medical marijuana and medical marijuana

collective defenses were as follows:

“A person is a qualified patient if he or she has a written or oral

approval from a physician for the medical use of marijuana.

“Qualified patients claiming protection under the law may possess an

amount of marijuana that is reasonably related to their current medical

needs.

“The question of whether medical use of marijuana is appropriate for

a patient’s illness is a determination to be made by a physician. The

possession of a written recommendation by a patient creates a presumption

he or she is a qualified medical marijuana patient.

“Selling or furnishing marijuana to people who do not have a

medical marijuana recommendation remains prohibited under the medical

marijuana laws.

“The medical marijuana laws allow a person to cultivate, possess,

and transport the amount of marijuana that is reasonably related to the

patient’s current medical needs. Possession of marijuana in excess of this

limit is not authorized by the medical marijuana laws.

“If you find that the defendant committed acts that were outside the

protection of the medical marijuana laws, he is subject to the full force and

effect of the criminal law.

“Qualified patients 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 subjected to state

criminal sanctions under Sections 11357, 11358, and 11359.

“To establish the collective/cooperative defense, a defendant must

show:

“One: Qualified patients have associated within the State of

California in order, collectively or cooperatively, to cultivate marijuana for

medical purposes; and

“Two: The amount of marijuana possessed or cultivated is

reasonably related to the needs of the patients of the collective.

13.

“The burden is on the defendant to merely raise a reasonable doubt

as to the medical marijuana defense. However, if the defendant raises a

reasonable doubt as to the medical marijuana defense, the People then have

the burden to prove beyond a reasonable doubt that the defendant was not

acting lawfully.

“A qualified patient must have obtained a recommendation or

approval to use medical marijuana prior to the date of arrest. However, that

recommendation need not specify an approved dosage or amount of

marijuana that may be possessed or cultivated. A qualified patient is not

required to periodically renew his recommendation or approval regarding

the medical marijuana use or cultivation.”

In his closing argument, the prosecutor asserted that the only real issue in the case

was whether Anderson’s medical marijuana defense should prevail. In contending that it

should not, the prosecutor emphasized that, on the one hand, financial transactions had

taken place, while on the other, the witnesses other than Anderson had not done work in

the garden. Further, there arguably were more plants than the individuals themselves

needed. Finally, the prosecutor argued that the jury instructions did not say that it is legal

to sell medical marijuana, and in fact meant the opposite; so when Anderson claimed he

was following the law when he received money for marijuana sold on consignment

through Foothill Care Collective, he was merely asserting that he made a mistake of law,

which is not a defense.

Defense counsel argued that there was no evidence of sales to anyone except for

the consignment sales through Foothill Care Collective, and no evidence that this sale was

unlawful. Detective Erhardt testified that Anderson said he sold marijuana to a collective

in San Jose, but Anderson denied saying this.

In his rebuttal argument, the prosecutor again implied that any type of sale was

unlawful, saying, “If he is outside of the medical marijuana laws, going to sell marijuana

or do anything that is outside of the medical marijuana laws, again, he’s guilty.” The

prosecutor also said, “Remember, you can’t sell. Jury instruction says you can’t sell to

anyone.”

14.

The jury found Anderson guilty of count 1 (cultivation) and not guilty of count 3

(possession of concentrated cannabis). It found the firearm allegation not true. It could

not reach a verdict on count 2 (possession of marijuana for sale) and the court declared a

mistrial on that count.

Anderson entered into a plea agreement on the mistried count. He pleaded guilty

to a reduced charge, a misdemeanor violation of section 11366 (maintaining a place to

give away or sell marijuana). He does not appeal from the conviction on this plea.

The court suspended imposition of sentence and granted five years’ probation.

The conditions of probation included a 90-day jail term, of which 30 days were to be

served in actual custody and 60 under electronic monitoring. At the sentencing hearing,

the People continued to emphasize their view that all sales are unlawful, arguing that time

in actual custody was appropriate because “he’s been selling. He knows he’s been

selling.”

DISCUSSION

I. Background on medical marijuana law

In 1996, the voters approved Proposition 215, enacting the Compassionate Use Act

(CUA) (Prop. 215, § 1, as approved by electors, Gen. Elec. (Nov. 5, 1996) adding

§ 11362.5, subd. (a).) The CUA decriminalized possession and cultivation of marijuana

by patients with a physician’s recommendation and those patients’ primary caregivers:

“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 stated purposes of the CUA are: “To ensure that seriously ill Californians

have the right to obtain and use marijuana for medical purposes where that medical use

has been deemed appropriate and has been recommended by a physician …”; “[t]o ensure

that patients and their primary caregivers who obtain and use marijuana for medical

15.

purposes upon the recommendation of a physician are not subject to criminal prosecution

or sanction”; and “[t]o encourage the federal and state governments to 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).)

In 2003, the Legislature enacted the Medical Marijuana Program (MMP), also

sometimes called the Medical Marijuana Program Act (MMPA) (§§ 11362.7 et seq.).

The MMP contains numerous provisions for the orderly administration of the policies

declared by the CUA. One purpose of the MMP—of importance in this case—is to

protect collectives and cooperatives organized for the cultivation of marijuana for medical

use. An uncodified section of the legislation states that one of the Legislature’s goals was

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

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

end, the law includes section 11362.775, which provides a defense for collective or

cooperative cultivation:

“Qualified patients, persons with valid identification cards, and the

designated primary caregivers of qualified persons 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.”

(§ 11362.775.)

Panels of the Second, Third, and Fourth District Courts of Appeal have rejected

the view that the operation of a nonprofit business involving exchange of marijuana for

money between members of a collective or cooperative remains prohibited despite

section 11362.775. In People v. Urziceanu (2005) 132 Cal.App.4th 747 (Urziceanu), the

Third District held that, although the CUA provided no defense to a charge of conspiracy

to sell marijuana for a defendant accused of operating a cooperative to cultivate and

distribute (for money) marijuana to patients with medical marijuana recommendations,

16.

section 11362.775 did create such a defense. (Urziceanu, supra, at pp. 759-762, 767,

785.) The court explained:

“[T]he Legislature … exempted those qualifying patients and primary

caregivers who collectively or cooperatively cultivate marijuana for medical

purposes from criminal sanctions for possession for sale, transportation or

furnishing marijuana, maintaining a location for unlawfully selling, giving

away, or using controlled substances, managing a location for the storage,

distribution of any controlled substance for sale, and the laws declaring the

use of property for these purposes a nuisance.

“This new law represents a dramatic change in the prohibitions on the use,

distribution and cultivation of marijuana for persons who are qualified

patients or primary caregivers and fits the defense defendant attempted to

present at trial. Its specific itemization of the marijuana sales law indicates

it 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.

Contrary to the People’s argument, this law did abrogate [cases taking] a

restrictive view of the activities allowed by the [CUA].” (Urziceanu, supra,

132 Cal.App.4th at p. 785.)

The court reversed the conspiracy conviction and remanded for a new trial to allow

the jury to determine whether the defendant’s “cooperative falls within the parameters of

section 11362.775.” (Urziceanu, supra, 132 Cal.App.4th at pp. 786-787.)

In their brief opposing Anderson’s motion to set aside the information pursuant to

Penal Code section 995, the People maintained that if Urziceanu “implies that monetary

transactions are immunized based on the statutory construction of section 11362.775, this

analysis was superseded by the Supreme Court’s statutory construction of MMP

immunities in” People v. Mentch (2008) 45 Cal.4th 274. Mentch, however, does not

address section 11362.775 at all. The facts of Mentch bear some similarity to the facts in

the case—Mentch was a medical marijuana patient who cultivated marijuana for himself

and also distributed it to several other patients—but there was no evidence that Mentch

was part of any collective or collectives; no defense under section 11362.775 was

attempted or argued for. Instead, Mentch made, and the Supreme Court rejected, an

17.

argument that he fell within the protections of a different defense (§ 11362.765) for

primary caregivers and those who assist patients in administering marijuana and acquiring

cultivation skills. (Mentch, supra, at pp. 290-292.) A court’s opinion is not authority for

a proposition not considered in it. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)

In People v. Hochanadel (2009) 176 Cal.App.4th 997 (Hochanadel), the

defendants were operators of a storefront medical marijuana dispensary charged with

possession of marijuana for sale, transportation of marijuana, and maintaining a business

for the purpose of selling marijuana. (Id. at pp. 1002-1004.) The Fourth District reversed

an order to quash a search warrant and also reversed the resulting dismissal of the

charges, but its analysis in reaching this result included an assertion that storefront

dispensaries qualifying as cooperatives or collectives can operate free of criminal liability

under section 11326.775. (The question was germane because one of the issues the court

had to decide was whether probable cause existed to support the search warrant in light of

the existence of the section 11326.775 defense.) (Hochanadel, supra, at pp. 1002-1003,

1016-1017.) The court stated:

“[I]f a storefront dispensary managed by primary caregivers or medical

marijuana patients is truly operating as a cooperative or collective, it and its

operators might have a defense to arrest and prosecution under

section 11362.775. Nothing in section 11362.775, or any other law,

prohibits cooperatives and collectives from maintaining places of business.”

(Hochanadel, supra, 176 Cal.App.4th at p. 1018.)

In People v. Colvin (2012) 203 Cal.App.4th 1029 (Colvin), William Colvin was

convicted of transporting marijuana after a pound of marijuana, which he was moving

from one of his medical marijuana dispensary’s locations to its other location, was found

in his car. (Id. at p. 1032.) The dispensary operated by Colvin was a nonprofit

corporation that had 5,000 patient members, of whom 14 grew marijuana. The

nongrower members bought marijuana at the dispensary. The corporation used the

revenue to pay its expenses, including reimbursement to the growers and a salary for

18.

Colvin. (Id. at p. 1033.) The trial court ruled that the defense in section 11362.75 did not

apply. (Colvin, supra, at p. 1032.)

The Second District reversed. It rejected the Attorney General’s view that a

defendant cannot use the defense if the involvement of most of the cooperative’s or

collective’s members is limited to buying marijuana grown by other members, as opposed

to engaging in some more comprehensive kind of united action or participation. The

Court of Appeal explained that cooperative corporations organized under California law

typically operate in a similar way:

“The Attorney General [maintains] that a medical marijuana cooperative

seeking the protections of section 11362.775 must establish that some

number of its members participate in the process in some way. The

Attorney General does not specify how many members must participate or

in what way or ways they must do so, except to imply that [Colvin’s

dispensary], with its 5,000 members and 14 growers, is simply too big to

allow any ‘meaningful’ participation in the cooperative process; hence, it

cannot be a ‘cooperative’ or a ‘collective’ in the way section 11362.775

intended. But this interpretation of section 11362.775 would impose on

medical marijuana cooperatives requirements not imposed on other

cooperatives. A grocery cooperative, for example, may have members who

grow and sell the food and run a store out of which the cooperative’s

products are sold. But not everyone who pays a fee to become a member

participates in the cooperative other than to shop at it.” (Colvin, supra, 203

Cal.App.4th at p. 1039.)

In People v. Jackson (2012) 210 Cal.App.4th 525 (Jackson), Jovan Jackson was

charged with sale of marijuana and possession of marijuana for sale. (Id. at p. 529.) He

and five others cultivated marijuana and distributed it to a collective having about 1,600

other members. (Ibid.) The trial court ruled that he could not present a defense under

section 11362.775 even though the collective’s members were qualified patients and the

collective was not operated for profit. The trial court found “that in light of the large

number of members of the collective, Jackson could not establish that the collective was

operated for the purpose of collectively cultivating marijuana within the meaning of the

19.

MMPA as opposed to simply distributing marijuana.” Jackson was convicted. (Jackson,

supra, at p. 529.)

The Fourth District reversed. In its view, the trial court was mistaken in its belief

that the collective was unprotected by the statute because its business model involved a

small number of grower members cultivating for a large number of consumer members

who paid for the marijuana, as opposed to a homogeneous group who all participated in

cultivation together:

“The defense the MMPA provides to patients who participate in collectively

or cooperatively cultivating marijuana requires that a defendant show that

members of the collective or cooperative: (1) are qualified patients who

have been prescribed marijuana for medicinal purposes, (2) collectively

associate to cultivate marijuana, and (3) are not engaged in a profit-making

enterprise. As we interpret the MMPA, the collective or cooperative

association required by the act need not include active participation by all

members in the cultivation process but may be limited to financial support

by way of marijuana purchases from the organization.” (Jackson, supra,

210 Cal.App.4th at pp. 529-530.)

The Fourth District revisited the issue of sales among and between members of

medical marijuana cooperatives and collectives in People v. London (2014) 228

Cal.App.4th 544 (London) and People v. Baniani (2014) 229 Cal.App.4th 45 (Baniani).

In London, a jury instruction concerning section 11362.775 was found to be erroneous

because it incorrectly stated that the actual sale of marijuana is not lawful even if a person

has a valid medical marijuana recommendation from a physician. (London, supra, 228

Cal.App.4th at p. 563.) The opinion explains that under the MMP, a qualified patient or

valid identification cardholder may not earn a profit from growing or distributing medical

marijuana, but such individuals are entitled to receive reasonable compensation and

reimbursement of out-of-pocket expenses for labor or services rendered in cultivating

medical marijuana for other qualified members of lawfully operating nonprofit

cooperatives and/or collectives to which they belong. (Id. at p. 564-566.) In Baniani, the

appellate court reversed a defendant’s conviction of possessing marijuana for sale due to

20.

the trial court’s erroneous refusal to allow the defendant to assert a defense under section

11362.775. The panel held that section 11362.775 “was written to provide a defense to a

charge of selling marijuana in appropriate circumstances,” and further opined that a

contrary interpretation of the statute would defeat the stated purpose of the MMP to make

access to medical marijuana easier for patients. (Baniani, supra, 229 Cal.App.4th at p.

61.)

These cases endorse a conception of a medical marijuana collective or cooperative

protected by section 11362.775 according to which day-to-day business operations can

involve buying from grower members and selling to consumer members, so long as all

members are patients or primary caregivers, all the buying and selling is done on a

nonprofit basis within the collective or cooperative, there are no transactions with

nonmembers, and the amount cultivated is reasonably necessary for the membership’s

medical needs. The same conception is reflected in the California Attorney General’s

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

(Aug. 2008) (Guidelines),4 which were developed pursuant to section 11362.81,

subdivision (d).

Under the Guidelines, a medical marijuana cooperative must be organized as a

cooperative corporation under the Corporations Code or the Food and Agricultural Code.

By statute, a cooperative corporation can have earnings, but these “must be used for the

general welfare of its members or equitably distributed to members in the form of cash,

property, credit or services.” Further, “[c]ooperatives should not purchase marijuana

from, or sell to, non-members; instead, they should only provide a means for facilitating

or coordinating transactions between members.” (Guidelines, § IV(A)(1), p. 8.)

Collectives, unlike cooperatives, do not exist as statutory corporate entities, but “as a

4<http://www.ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuana

guidelines.pdf> (as of Jan. 9, 2015).

21.

practical matter” they “might have to organize as some form of business to carry out

[their] activities.” These, similarly, “should not purchase marijuana from, or sell to, non-

members; instead, [they] should only provide a means for facilitating or coordinating

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

presuppose that the section 11362.775 defense applies to business organizations and their

members who engage in financial transactions for marijuana, if the necessary criteria

(there is a cooperative or collective, all members are qualified patients or caregivers,

transactions are only among members, the amount cultivated is not excessive) are

satisfied.

We agree with the view of section 11362.775 taken by the Guidelines and

expressed by our colleagues in other districts. The MMP’s goal of promoting the orderly

and lawful cultivation and distribution of medical marijuana through nonprofit patient-

owned-and-operated cooperatives and collectives would not be served by an artificially

constrained conception of those entities, according to which they cannot use ordinary

business methods or a practical division of labor. As will be seen, under the particular

facts and circumstances of this case, the jury instructions given on the

cooperative/collective defense were misleading in light of the view of the law that we

share with the existing authorities.

II. Jury instructions on the cooperative/collective defense under section 11362.775

As indicated above, the jury instructions stated that the elements of the

cooperative/collective defense are (1) an association of qualified patients to cultivate

medical marijuana collectively or cooperatively; and (2) an amount of marijuana

possessed or cultivated that did not exceed the needs of the patients of the collective.

Anderson maintains that these instructions were inadequate because they failed to explain

that a collective or cooperative formed to cultivate medical marijuana lawfully need not

consist of members who all share in the work of cultivation, as opposed to some members

who contribute their labor and others who contribute money. In light of all the facts and

22.

circumstances of this case, we agree that the instruction was inadequate for this reason,

and that the omission of an instruction clarifying the issue was prejudicial.

No objection to the instruction given, and no request for a more complete

instruction, was made in the trial court. Under Penal Code section 1259, however, it is

appropriate to address the issue despite the lack of preservation. Penal Code section 1259

provides that instructional error not preserved for appeal by objection in the trial court

may nevertheless be addressed on appeal if the error affects the defendant’s substantial

rights. As we will explain, there is a reasonable probability that Anderson would have

obtained a better outcome absent the error, so his substantial rights were affected.

(People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2 [prejudicial error affected

defendant’s substantial rights within meaning of Pen. Code, § 1259]; People v. Andersen

(1994) 26 Cal.App.4th 1241, 1249 [same].)

In a criminal trial, the court must give an instruction requested by a party if the

instruction correctly states the law and relates to a material question upon which there is

evidence substantial enough to merit consideration by the jury. (People v. Avena (1996)

13 Cal.4th 394, 424; People v. Wickersham (1982) 32 Cal.3d 307, 325, overruled on other

grounds by People v. Barton (1995) 12 Cal.4th 186, 201.) Even without a request, the

court is required to give correct jury instructions on the general principles of law relevant

to issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)

The court has no duty to give an instruction if it is repetitious of another

instruction the court gives. (People v. Turner (1994) 8 Cal.4th 137, 203) “‘“[T]he

correctness of jury instructions is to be determined from the entire charge of the court, not

from a consideration of parts of an instruction or from a particular instruction.”’” (People

v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Failure to give an instruction, even if it

was required under the above principles, warrants reversal only if there is a reasonable

probability that the defendant would have obtained a more favorable outcome if it had

been given. (People v. Breverman (1998) 19 Cal.4th 142, 178.)

23.

In this case, the court was required to give instructions on the defense afforded by

Health and Safety Code section 11362.775, and it did so. In light of the evidence,

however, the instructions it gave did not go far enough and did not give the jury enough

information to make a rational decision about whether or not the defense was established.

There was evidence that Anderson grew marijuana for Foothill Care Collective, that he

was a patient member of that collective, and that he received money through it from other

patient members for the marijuana he grew. There also was evidence that Anderson was

in the process of forming a new collective or cooperative, in which he would be the only

grower, while the other patient members would reimburse or compensate him with

money. The words of the instruction, referring to collective cultivation, failed to express

the idea that collectives organized in the way the evidence suggested could be lawful.

Under the circumstances, the instructions’ failure to express this idea was not

harmless, for with an appropriate instruction, it is reasonably probable that the jury would

have found it had a reasonable doubt in favor of Anderson regarding whether the

elements of his section 11362.775 defense had been established, and would have gone on

to find a reasonable doubt as to his guilt on the charge of unlawful cultivation. Several

considerations support this conclusion. First, the prosecutor insisted that taking money

for marijuana, regardless of whether the transaction is called sales or consignment, is

categorically unlawful. This is incorrect, for, as we have said, collectives and

cooperatives that operate on a basis of monetary exchange can be lawful under

section 11362.775. There was no objection by counsel and no correction by the court,

and the jury instructions contained nothing that contradicted the prosecutor’s view, so

there is good reason to think that view was accepted by the jury. The prosecutor also

stressed that the other members of the collective Anderson was in the process of forming

did not work in the garden, incorrectly implying—again without objection by defense

counsel or correction by the court—that this necessarily meant the cooperative/collective

defense did not apply. The jurors could easily have been misled by this, and the

24.

instructions given—referring to collective cultivation—would have reinforced their

mistaken impression.

If the jury had found that Anderson raised a reasonable doubt about whether the

defense applied, its next task under the instructions would have been to decide whether

the prosecution proved beyond a reasonable doubt that it did not. Yet the prosecution’s

case on this point was not the strongest. This is the second consideration supporting our

view that the instructional error was not harmless. There was no evidence of sales to

anyone except the consignment sales through Foothill Care Collective, which was not

shown to be anything other than a lawful collective to which Anderson belonged. No

individuals except those who testified at trial were even alleged to be prospective buyers

or recipients of Anderson’s marijuana, and there was evidence that they were qualified

patients in the process of forming a collective with Anderson within the meaning of

section 11362.775. The prosecution’s case depended on inferences that Anderson was

not really forming a collective because the paperwork was not complete, that Foothill

Care Collective was not legitimate because it had been raided, and on Detective Erhardt’s

estimate of the potential yield of the garden, which vastly exceeded Conrad’s estimate. A

correctly instructed jury would have needed to consider this case and its weaknesses

carefully, as it could not have relied on the prosecutor’s overly broad statements about the

illegality of marijuana sales.

Finally, the likelihood of a better outcome for Anderson absent the incomplete

instruction is indicated by the nature of the verdict. The combination of a guilty verdict

on the cultivation count and a hung jury on the possession-for-sale count suggests that the

jury had trouble sorting out the law. The jury’s failure to agree on possession for sale is

surprising given its agreement on cultivation, for the prosecution’s primary theory was

that Anderson was guilty of cultivation because he was growing marijuana with the intent

to sell it unlawfully. The jury’s inability to agree on the one count even as it agreed on

25.

the other could well have arisen from confusion over when it is lawful to cultivate and

receive money for cultivating marijuana as part of a medical collective.

We do not mean to suggest that the verdict necessarily was inconsistent. It would

be logically possible to find, for instance, that Anderson had no intent to engage in any

unlawful sales, but still cultivated more marijuana than was reasonably necessary for the

medical needs of himself or any collective he belonged to. But, although this is possible,

it remains reasonably probable that the verdict arose from confusion rooted in the jury

instructions.

In summary, a critical issue in this case was whether the cooperative/collective

defense of section 11362.775 applied given evidence of the financial nature of

Anderson’s involvement with Foothill Care Collective and evidence that his new

collective would similarly involve Anderson cultivating on behalf of others who would

pay him. Saying merely that collective cultivation can be lawful, the jury instructions left

the jurors to their own devices in figuring out how the law treats collectives of the kind

indicated by the evidence here. In this, the instructions were prejudicially erroneous.

If the People should decide to retry Anderson on the cultivation count, we will

leave it to the court and parties to determine, in light of the evidence, the precise language

of instructions that must be given on the cooperative/collective defense. At a minimum,

however, the instructions must explain that, in a lawful cooperative or collective,

members need not necessarily participate personally in cultivation or any other particular

duties, and that the exchange of marijuana for money does not, by itself, make a

transaction unlawful within a collective or cooperative.

In addition to the above, Anderson also argues that the jury instructions were

erroneous because they did not require the jury to determine whether or not the collective

was a nonprofit enterprise. We need not address this question, as we are reversing for

another reason, but in any event we do not see how any such error would have been

prejudicial. A lawful cooperative or collective must indeed be a nonprofit enterprise

26.

under section 11362.775, but specifying this element in the jury instructions could only

have helped the People, not Anderson.

III. Destruction of evidence

Anderson argues that the trial court erred when it denied his motion to dismiss on

account of the alleged failure of the sheriff’s department to preserve evidence pursuant to

section 11479. He claims that the sheriff’s department failed to comply with the statute

and deprived him of due process of law.

Anderson’s motion claimed the sheriff’s department did not comply with the

statutory requirements for preserving samples and did not make samples available to the

defense, but the People’s opposition claimed it did comply and that the preserved

evidence was available for inspection. At the hearing, defense counsel did not deny that

the defense could have inspected the evidence. Instead, he argued that the People had not

proved that the samples were representative—an implicit concession that samples existed

and were accessible to the defense. Anderson also argued that the affidavit filed by the

sheriff’s department did not satisfy the statutory requirements.

We need not decide whether there was full compliance with the preservation and

affidavit requirements of section 11479. For the sake of argument, we will assume that

the People had the burden of proving compliance and that they did not prove it. It

remains to be determined whether Anderson has carried his burden of demonstrating

prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972 [appellant has burden of

showing appellate court both error and prejudice].)

Anderson says he was prejudiced because an important factual issue for his

defense was whether the quantity of marijuana he was growing was more than a

reasonable amount for his medical needs and/or the needs of his asserted collective. He

says the sex, quality, and maturity of the plants were all factors contributing to the amount

of usable marijuana the plants ultimately would yield. Without adequate samples, he

27.

contends, he was deprived of the opportunity to rebut fully the People’s claim that the

quantity was too large.

This argument presupposes that the samples preserved were not sufficient for these

purposes. But even if (as we are assuming) the samples did not fully comply with the

statute, it does not necessarily follow that they could not have been used to support

exculpatory conclusions about the garden’s yield. Conrad’s testimony revealed that the

defense chose to forgo the opportunity to examine the samples. If it had examined them,

it could have made a determination about whether they were adequate for evidentiary

purposes. Since it decided not to do this, Anderson is now unable to show that any error

in the sampling process was harmful to his case.

DISPOSITION

The judgment is reversed and the case is remanded to the trial court for further

proceedings.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Cornell, Acting P.J.

_____________________

Oliver, J.

Judge of the Superior Court of Fresno County, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

28.