The opinion
Filed 12/3/15 P. v. Hoang CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A139341
v.
THANG VINH HOANG, (San Mateo County
Super. Ct. No. SC076529A)
Defendant and Appellant.
I.
INTRODUCTION
A jury convicted Thang Vinh Hoang of unlawful cultivation of marijuana (Health
& Saf. Code, § 113581), possession of marijuana with intent to sell (§ 11359) and utilities
theft (Pen. Code, § 484). Hoang was sentenced to probation which required him to
abstain from the use or cultivation of marijuana, although this term could be modified
upon a showing that limited medicinal use was appropriate. On appeal Hoang challenges
his drug convictions on three grounds: (1) insufficient evidence; (2) the admission of
improper expert testimony; and (3) erroneous jury instruction. Alternatively, Hoang
contends that the probation condition prohibiting him from using marijuana is invalid.
We affirm the judgment and sentence.
1
Unless otherwise stated, statutory references are to the Health and Safety Code.
1
II.
STATEMENT OF FACTS
A. The Prosecution Case
1. Discovery of the Marijuana Growing Operation
In October 2011, the Daly City Police Department received a 911 call for
assistance from a cell phone traced to a residence on Pinehaven Drive (Pinehaven).
When officers went there to conduct a welfare check, nobody answered the door, but
lights inside the home were going on and off and a few windows were opened. The
officers used a ladder to look inside a window and saw what appeared to be a marijuana
“cultivation operation.” After determining that the 911 caller was a previous tenant at
Pinehaven, the police reported their discovery to the San Mateo County Narcotics Task
Force (NTF).
On December 14, 2011, at around 5:00 a.m., San Mateo County Narcotics Task
Force (NTF) Agent Lance Sandri went to Pinehaven to look for physical signs of a
commercial marijuana growing operation. It appeared to Sandri that someone had
recently arrived at Pinehaven because a silver van in the driveway did not have
condensation on the windows like other cars parked in that neighborhood. Sandri noticed
two large bags of potting soil in the back of the van. Moving closer to the house, he
heard a loud humming noise which sounded like commercial fans, and when he put his
hand in front of the mail slot, he felt a strong pull of air into the house.
In March 2012, Sandri returned to Pinehaven with another NTF agent, Jeremy
Brandenburg. Again, the agents heard loud humming in the house and felt the pull of air
through the mail slot. By that time, Sandri had identified Hoang as the owner of the
silver van and traced him to a residence on Seacliff Avenue (Seacliff), approximately five
minutes away from Pinehaven. The NTF agents conducted surveillance at Seacliff and
Pinehaven for several days. Hoang, the silver van, and other cars linked to Hoang were
observed moving between the two houses.
2
2. The Search Warrants
On the afternoon of March 27, 2012, the NTF executed a search warrant at
Pinehaven. Photocopies of four medical marijuana recommendations were posted near
the front door, one for Hoang, one for his wife Thuy Nguyen, and the other two for
individuals named Lan Hoang and Hiep Nguyen. During their prior surveillance, agents
had seen Hoang’s wife at Pinehaven only once and had never seen the other individuals
there. The recommendations for Hoang and his wife both stated: “This patient may grow
99 mature plants and possess 19 pounds of processed cannabis for their yearly medical
needs.” The other two recommendations were for the same amounts with slightly
different language. An agent attempted to contact the doctor whose name appeared on all
four recommendations, but was unable to reach him by telephone.
When Pinehaven was searched, every room in the unoccupied house appeared to
contain evidence of a commercial marijuana growing operation. In the kitchen agents
found several boxes of oven roasting bags, which are commonly used in marijuana
trafficking because they hold one pound of marijuana bud and are thought to lock in
freshness. The living room windows were covered with blackout curtains, which are
used to conceal activity conducted in a grow house. A front room window was encased
in a box which held a small light attached to a timer, a device that is used by illegal grow
houses to create the appearance that people are actually living there. Somebody had
bypassed the Pacific Gas and Electric (PG&E) electricity meter, which not only avoided
high electricity bills, but helped prevent detection of high electricity use. There were a
few burnt marijuana cigarettes in an ash tray, but no evidence that anyone was using
Pinehaven to cook or make food products with marijuana.
Two large rooms on the second floor of Pinehaven were equipped with special
growing lights, wall coverings, curtains, fans and other equipment designed to facilitate
plant growth. One room contained 40 marijuana plants in a flowering stage, which would
be ready to harvest in one or two months time. The other room featured a more
sophisticated lighting system, and contained 299 marijuana plants in various stages of
growth. In the closet of that room, the agents recovered 40 ounces of marijuana drying in
3
a tray. They found 15 smaller marijuana plants in a second floor closet that was set up as
a germination room, with a special light to stimulate the first stage of plant growth. A
plastic garbage bag filled with 10 ounces of partially processed marijuana bud was in the
second floor bathroom. The bathroom also contained a 55-gallon plastic drum of water
mixed with chemicals and fertilizers; a garden hose; a plastic tray for growing small
plants; and several containers of fertilizer stored under the sink.
There were two additional growing rooms on the lower level of Pinehaven. One
room contained 84 plants that would be ready to process in a few weeks. In a corner,
someone had collected plant debris, broken equipment, and containers of “shake,” a part
of the marijuana plant often considered unmarketable but which cannot be thrown in the
garbage without risking detection. Similar garbage was stored in the first floor bathroom,
which also featured a counter that a person could walk behind. The counter held a digital
scale, plastic oven bags, and sulfur tablets which are used to facilitate marijuana growth.
A second growing room on the ground level contained an additional 100 marijuana
plants.
While Pinehaven was being searched, NTF Agent Cameron Christensen was
stationed at Seacliff, and when Hoang left there in the silver van, Christensen followed.
Hoang drove to Pinehaven, hesitated in front of the house where the NTF agents could
been seen, and then drove on until he was stopped a few blocks away and taken into
custody. Later that evening, NTF agents executed a search warrant at Seacliff.
Appellant’s wife, Thuy Nguyen, and three children were present at the house. In a
nightstand in the master bedroom, agents found $6,200, all in $100 bills. Nguyen denied
knowing anything about the marijuana at Pinehaven and told the agents the money was
from her beauty salon business. The agents did not find any indicia of marijuana growing
or use at Seacliff.
3. Expert Testimony
At trial, Agent Brandenburg qualified as an expert on two subjects, possession of
marijuana for sale and marijuana grow houses. Brandenburg testified that the two most
common circumstances distinguishing a commercial grow house from a marijuana
4
cultivation for personal use are (1) the quantity of product being produced; and (2) the
use of a PG&E bypass device. Generally, personal users grow a small quantity of
marijuana in a readily accessible place like a room or garage in their home; they do not
cultivate a large harvest requiring processing and storage, but grow a small amount of
plants at different stages so they can always have a “fresh off the plant” product.
Brandenburg opined that a typical personal use grower might have 10 to 15 plants.2
Brandenburg testified that his conversations with hundreds of medicinal marijuana
users about their daily consumption reflect a range of need, with some people using only
one or two grams and at least one person Brandenburg knows who consumes 10 grams a
day. Brandenburg used an average of four grams of bud a day and a top range estimate
of 10 grams a day to calculate the total average consumption of a medicinal marijuana
user during the four month growth cycle of a marijuana plant. He concluded that a
typical medical marijuana patient needs approximately 480 grams of marijuana bud to
cover the four-month period, while a heavy user needs a four-month supply of
approximately 2.6 pounds. Thus, Brandenburg testified, in order for a harvest to meet the
needs of four heavy medicinal users for a four-month period, a single harvest would need
to yield 10.6 pounds of marijuana bud.
Brandenburg testified that the marijuana cultivation at Pinehaven would have
yielded significantly more than 10.6 pounds of marijuana bud during the four-month
period after the NTF executed its search warrant. According to Brandenburg, an indoor
marijuana plant yields approximately four ounces of marijuana bud. When Pinehaven
was searched, there were 184 plants that would have been ready to harvest in a few
weeks when they would yield approximately 46 pounds of marijuana bud. One hundred
forty plants would have been ready for harvest a month later and yielded an additional 35
pounds of product. And, the remaining 200 smaller plants would have been ready for
harvest approximately three months after the search was conducted and would yield an
2
Brandenburg has seen cases where personal use growers had as many as 30 to
40 plants, and in those situations there would typically be a discussion about the person’s
actual needs and an agreement to reduce the yield to something closer to 15 plants.
5
additional 49.75 pounds of marijuana. Thus, Brandenburg calculated that the total yield
of the Pinehaven growing operation during the four-month period following the NTF
search would have been 130.75 pounds of marijuana bud.3
Drawing on his experience and the evidence amassed during the Pinehaven
investigation, Brandenburg concluded that some of the marijuana at Pinehaven was
grown for personal use, but the majority of it was cultivated for purposes of sale.
According to Brandenburg, it is not uncommon for a seller in the drug trade to make use
of his own product. In this case, Brandenburg opined that Hoang was a marijuana
seller/user who contracted with someone else to handle the distribution of his product.
When asked about the recommendations posted on the wall at Pinehaven,
Brandenburg testified that doctors make these types of recommendations because federal
law prohibits writing a prescription for medical marijuana. In this case, the doctor whose
name appeared on the recommendations was from Upper Lake, which is north of Clear
Lake, approximately two and one-half hours away from Hoang’s Daly City home.
According to Brandenburg, medical marijuana cultivation in the northern part of
California is typically done outside, and an outside crop requires more plants than an
indoor crop because of environmental factors, like bug infestations and deer who love to
eat marijuana plants. A recommendation of 99 plants and 19 pounds for a year might be
appropriate for an outside medical marijuana cultivation in a northern county, but
Brandenburg testified that it is not a common recommendation for the San Francisco Bay
Area.
B. The Defense Case
Appellant’s first trial witness was Dr. Eugene Schoenfeld, a medical doctor and
psychiatrist who testified as an expert on the subject of medical marijuana. Schoenfeld
3
According to the trial evidence, the commercial value of marijuana bud varies
between $2,000 and $8,000 per pound depending on where in the country the product is
sold. Furthermore, it is much cheaper to buy marijuana in bulk. In California, for
example, a pound can be broken down and sold for $20 a gram, which would translate
into $9,000 for the entire pound.
6
reviewed medical records from Hoang and his wife, Thuy Nguyen, which showed that
Hoang had reported suffering from insomnia, gastrointestinal problems and hemorrhoids,
and that Nguyen reported she suffered from migraines. Schoenfeld testified that in his
opinion, all of these conditions can be treated with medicinal marijuana.
According to the records Schoenfeld reviewed, Hoang and Nguyen both reported
that they smoke marijuana, but Schoenfeld testified they told him that they mostly use
marijuana in its edible form. According to Schoenfeld, people who consume marijuana
by eating it need larger quantities than smokers because the smoke has a direct impact,
whereas the eaten product has to be digested. Schoenfeld testified that he does not know
Milan Hopkins, the doctor who allegedly provided the marijuana recommendations in
this case, but he did know that Hopkins was the subject of an administrative action and
facing possible suspension of his medical license.
The second defense witness at trial was Christ Conrad, an author and activist for
reform of marijuana laws who has studied the plant since the 1990’s. Conrad was
qualified to offer an expert opinion on the condition of the Pinehaven plants and the
expected yield of that garden. Using photographs, Conrad explained to the jury that he
believed some of the plants on the lower level of Pinehaven had a fungus called botrytis
or “bud rot.” Evidence that the gardeners were using sulfur in the downstairs rooms
showed they were aware of the problem and trying to treat it. Conrad testified that bud
rot can devastate a marijuana garden; it attacks the flowers of the plant, rots them from
the inside out and kills the plant. Based on the photographs he was shown, Conrad
estimated that as much as 25 percent of the lower floor grow room was infected. Conrad
also testified that the spores could travel and affect the upper level plants as well.
Conrad offered an opinion regarding the likely yield of the Pinehaven garden
assuming his conclusions about bud rot were true. To reach that opinion, he employed
two different formulas, using their outcome to calculate an average mean. The first
formula, used in federal studies to predict the yield of an outdoor garden, makes a
predication based on the square footage of the garden. The second formula, commonly
used for indoor gardens, predicts yield based on the number of grow lamps used to
7
cultivate plants at the flowering stage of the growth cycle. Conrad testified that he
performed both calculations for the Pinehaven garden, added the products together and
then divided by two to get “a mean average of about 9.25 pounds from the flowering
garden” at Pinehaven. Thus, Conrad offered the opinion that if the Pinehaven gardeners
successfully harvested their entire crop four times over the period of a year, the total yield
for the garden would be 37 pounds.
According to Conrad, the average user of medicinal marijuana smokes
approximately 6.65 pounds of marijuana a year. Using that figure, Conrad opined that if
the Pinehaven garden was 100 percent successful, its yield would be enough for six
people to smoke medicinal marijuana for one year. However, in his opinion, the
estimated yield for the Pinehaven garden needed to be reduced by 25 percent to account
for the bud rot. Conrad also testified that people who eat cannabis may need as much as
four times the amount to get the same effect as smoking it.
After the defense experts testified, Hoang presented percipient witness testimony
from his sister Anh Hoang, and his wife Thuy Nguyen. Anh Hoang testified that Hoang
was living in China in the early 1990’s when he had a motorcycle accident. He was in a
coma for several days and had to wear a body cast that covered his head, arms, and legs.
In 1997, Anh moved with Hoang to the United States and she has stayed close with him.
Anh testified that the accident changed her brother because he constantly complains
about pain and headaches and he is unable to work.
Thuy Nguyen testified that when the NTF executed the search warrant at Seacliff,
she denied knowing anything about the marijuana at Pinehaven because she was afraid
the police would take her away from her children. Later, after she had time to calm
down, she told the authorities that she had a doctor’s permission to smoke marijuana.
Nguyen testified that she and Hoang went together to see Dr. Milan Hopkins and he gave
them permission to use marijuana because of her migraine headaches and Hoang’s
“sickness.” Nguyen testified that Hoang has sleep problems and back and leg pain. She
also explained that they shared the Pinehaven garden with her sister and brother-in-law
8
who both have marijuana recommendations. Nguyen testified that she personally used
Pinehaven as a place to smoke marijuana for her headaches.
III.
DISCUSSION
The issues on appeal pertain exclusively to Hoang’s convictions for unlawful
cultivation and possession of marijuana. Hoang contends his drug convictions must be
reversed because he established a “compassionate use” defense, which the prosecution
failed to rebut with admissible evidence, and which the jury would likely have accepted if
the trial court had excluded incompetent expert testimony and properly instructed them.
A. Statutory Framework
To facilitate our analysis, we briefly review two statutes which authorize use of
medical marijuana under certain circumstances: the Compassionate Use Act of 1996 (the
CUA; § 11362.5); and the Medical Marijuana Program (the MMP; § 11362.7 et seq.).
“In 1996, the California electorate approved Proposition 215 and adopted the
CUA, which 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).) By this and related provisions, the CUA provides an
affirmative defense to prosecution for the crimes of possession and cultivation.
[Citations.]” (People v. Kelly (2010) 47 Cal.4th 1008, 1012-1013, fn. omitted (Kelly).)
The CUA does not quantify the amount of marijuana that a patient may lawfully
possess or cultivate for his or her “personal medical purposes.” (§ 11362.5, subd. (d).)
Case law establishes that “the quantity possessed by the patient . . . , and the form and
manner in which it is possessed, should be reasonably related to the patient’s current
medical needs.” (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549; see also People v.
Wayman (2010) 189 Cal.App.4th 215, 223; People v. Windus (2008) 165 Cal.App.4th
634, 643; People v. Frazier (2005) 128 Cal.App.4th 807, 824–825 (Frazier).)
9
The defendant carries the burden of proving a CUA defense, i.e., that his
possession/cultivation was for personal medical purposes, was authorized by a physician,
and that the quantity in his possession was reasonably related to his current medical
needs. (People v. Mower (2002) 28 Cal.4th 457 (Mower); Frazier, supra, 128
Cal.App.4th at p. 818.) The “defendant may not merely point to the defense, but has the
burden to raise a reasonable doubt about the facts underlying this defense.” (Frazier,
supra, at p. 818, applying Mower, supra, at pp. 477, 481.)
In 2003, the Legislature enacted the MMP. (People v. Dowl (2013) 57 Cal.4th
1079, 1086 (Dowl).) “At the heart of the MMP 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.” (Kelly, supra, 47 Cal.4th at p. 1014, italics omitted.) Also in contrast to
the CUA, the MMP imposes quantity limitations on individuals protected by this statute.
(Id. at p. 1015.) Generally, the MMP establishes a baseline authorization for individuals
who qualify for the program to possess eight ounces of dried marijuana and no more than
six mature or 12 immature marijuana plants, and then it provides qualified exceptions for
even greater amounts. (Kelly, at p. 1016; § 11362.77, subds. (a)-(c).)
The quantity restrictions imposed under the MMP do not affect a patient’s right
under the CUA to cultivate and possess the amount of marijuana reasonably necessary to
meet his current medical needs. (Kelly, supra, 47 Cal.App.4th at p. 1049.) “Whether or
not a person entitled to register under the MMP elects to do so, that individual, so long as
he or she meets the definition of a patient or primary caregiver under the CUA, retains all
the rights afforded by the CUA. Thus, such a person may assert, as a defense in court,
that he or she possessed or cultivated an amount of marijuana reasonably related to meet
his or her current medical needs [citation] without reference to the specific quantitative
limitations specified by the MMP.” (Ibid.)
B. Sufficiency of the Evidence
Hoang contends there is insufficient evidence to support his drug convictions
because he raised a reasonable doubt as to the facts establishing a CUA defense and the
10
prosecution failed to rebut that defense by establishing beyond on a reasonable doubt that
his possession and cultivation of marijuana was not authorized for medical purposes.
The trial court used a version of CALCRIM No. 2370 to instruct the jury about
Hoang’s CUA defense, which stated: “Possession or cultivation of marijuana is lawful if
authorized by the Compassionate Use Act. The Compassionate Use Act allows 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.”
The People did not object to this instruction in the trial court, and they do not
complain about it here. Therefore, we accept for purposes of appeal that substantial
evidence supported this CUA defense instruction. (See People v. Salas (2006) 37 Cal.4th
967, 982 [“defendant has a right to have the trial court, on its own initiative, give a jury
instruction on any affirmative defense for which the record contains substantial
evidence”].) However we reject Hoang’s assumption that the jury was required to accept
his evidence. “ ‘[S]ubstantial evidence’ means evidence of a defense, which, if believed,
would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s
guilt. [Citation.]” (People v. Givan (2015) 233 Cal.App.4th 335, 343-344.) Here, there
are many reasons the jury could reasonably have concluded that Hoang’s evidence was
not worthy of belief.
For example, the jury could have found that the medical marijuana
recommendations posted at Pinehaven were not legitimate. Although photocopies of
those recommendations were admitted into evidence, the recommending doctor did not
appear to verify or explain them. Instead, the defense relied solely on the expert opinion
of a non-treating physician. Dr. Schoenfeld offered his expert opinion that the
recommendations were appropriate for Hoang and his wife, but he was not their doctor
and readily admitted that he did not know Dr. Milan Hopkins, the doctor who allegedly
11
issued the recommendations, and who was facing possible suspension of his medical
license at the time of trial.
Alternatively, the jury could have concluded that Hoang and his wife had valid
marijuana recommendations, but that the other two individuals did not. Dr. Schoenfeld
did not offer any opinion regarding the medicinal needs of those two people. At best, the
marijuana recommendations for Hoang and his wife authorized a cultivation of 198 plants
to meet their yearly medical needs. However, NTF seized more than 500 plants from
Pinehaven and the prosecution established that all of those plants would have been
harvested within a four-month period and would have yielded 130.75 pounds of
marijuana, significantly more than the 38 pounds allegedly authorized by Dr. Hopkins for
the yearly medical needs of Hoang and his wife.
The jury also could have concluded that Hoang and his associates had a doctor’s
approval to use medicinal marijuana, but that the amount of plants at Pinehaven was not
reasonably related to their current medical needs. In this regard, we do not share Hoang’s
apparent assumption that the annualized amount of marijuana “authorized” by Hopkins’s
recommendations is prima facie proof of the current medical needs of the four
individuals. As discussed above, the quantity of marijuana that an individual protected
by the CUA may lawfully possess and cultivates depends on a current needs
determination. (Kelly, supra, 47 Cal.4th at p. 1049.) Moreover, a recommendation for a
specified amount of marijuana to cover a medicinal user’s projected yearly needs is
inherently suspect. Certainly a defendant cannot immunize himself from prosecution for
illegal possession or cultivation by obtaining a blanket annualized authorization to
possess a large amount of marijuana which is not tethered to a current assessment of
need.
Even if the marijuana recommendations and Dr. Schoenfeld’s opinion about them
raised a reasonable doubt in the jury’s mind about whether Hoang came within the
protection of the CUA, the trial evidence substantially supports findings beyond a
reasonable doubt that Pinehaven was a commercial grow house, and that Hoang
cultivated and possessed marijuana not just for his own personal use but for purposes of
12
sale. Both the defense and the prosecution relied on expert testimony to support their
very different theories about the amount of marijuana that was necessary to meet the
current needs of the four individuals who allegedly used the Pinehaven cultivation. Both
elicited opinions regarding the average consumption of medicinal users and the likely
yield of the Pinehaven garden and, obviously, the jury was more persuaded by the
prosecution case.
For all these reasons, we conclude that the record contains substantial evidence
supporting Hoang’s convictions for unlawful cultivation and possession marijuana.
C. Expert Opinion Testimony
Hoang contends that the prosecution case was flawed because it relied on
incompetent expert testimony to establish the intent elements of the drug charges.
“ ‘Trial courts exercise discretion in determining both the admissibility of evidence under
Evidence Code section 352 [citation] and a witness’s expert status [citation].’
[Citation.].” (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) Here, Hoang argues that
the trial court abused its discretion by permitting Agent Brandenburg to offer an expert
opinion that the marijuana at Pinehaven was cultivated and possessed for purposes of
sale, rather than for the personal medical needs of Hoang and his associates.
Hoang forfeited this claim by failing to raise it at trial. (Dowl, supra, 57 Cal.4th
1079, 1087-1089.) “[A] defendant who fails at trial to object that a witness lacks the
qualifications to render an expert opinion may not on appeal contest the opinion’s
admissibility. [Citations.] This rule helps the trial court ‘take steps to prevent error from
infecting the remainder of the trial’ and to develop an adequate record. [Citation.]
‘Equally important,’ it ‘afford[s] the prosecution the opportunity to . . . provide additional
foundation for the admission of evidence . . . .’ [Citation.] It thus ensures that the party
offering the evidence has an opportunity to address any objection and ‘ “prevents a party
from engaging in gamesmanship by choosing not to object, awaiting the outcome, and
then claiming error.” ’ [Citation.]” (Id. at pp. 1087-1088.)
Furthermore, Hoang’s objection lacks merit. His theory boils down to the
contention that a law enforcement officer is not qualified to offer an expert opinion
13
regarding the purpose of a marijuana cultivation in any case in which the defendant
asserts a CUA defense because that officer is not qualified to assess the defendant’s
medical needs. However, Agent Brandenburg did not offer an expert opinion about
Hoang’s medical condition or his personal use needs. Rather, he drew on his extensive
experience dealing with both commercial grow operations and medicinal marijuana users
to formulate the opinion that even if Hoang was a medicinal marijuana user, the
Pinehaven garden was cultivated and possessed for purposes of sale. In light of the
testimony regarding Brandenburg’s experience in this area and the defendant’s failure to
object while Brandenburg was on the witness stand, the trial court did not abuse its
discretion by admitting Brandenburg’s opinion.
Taking a different tack, Hoang complains that Brandenburg’s expert opinion that
the Pinehaven cultivation was intended for sale was based solely on his legally improper
subsidiary opinion that there were simply “too many” plants at that location. Hoang
argues that this underlying opinion regarding how many plants are too many was
improper because it violated settled law establishing that the CUA does not impose any
specific quantity limitation on protected individuals. (Citing Kelly, supra, 47 Cal.4th at
p. 1049.)
First, Hoang mischaracterizes Brandenburg’s expert testimony. Brandenburg
opined that some of the marijuana at Pinehaven may have been cultivated and possessed
for personal use, but the majority of the plants at that location were grown and possessed
for purposes of sale. Although the quantity of plants discovered at Pinehaven was one
important basis for this conclusion, Brandenburg also stressed that the use of a PG&E
bypass system was indicative of a commercial operation. Furthermore, as discussed in
our factual summary, Brandenburg testified about numerous other indicia that Pinehaven
was a commercial grow house, including the measures that had been taken to conceal
activities inside the house and create the impression that someone was living there; the
sophisticated equipment designed to facilitate plant growth; the plastic bags, sulfur
tablets, scale and other items commonly used in commercial marijuana operations; and
14
the presence of plant debris and broken equipment that could not be thrown in the
garbage without risking detection.
Second, Hoang misconstrues the relevant case law. In Kelly, supra, 47 Cal.4th
1008, the Supreme Court held that an individual protected by the CUA may possess or
cultivate the amount of marijuana that is reasonably related to meet his or her current
medical needs regardless of the “specific quantitative limitations specified by the MMP.”
(Id. at p. 1049.) But the Kelly court did not even suggest that the quantity of marijuana
possessed or cultivated by an individual is irrelevant to an assessment of his or her
current medical needs. Indeed, since the CUA requires that the amount be reasonably
related to current need, quantity is necessarily a relevant factor.
Here Agent Brandenburg’s testimony did not violate the letter or spirit of Kelly,
supra, 47 Cal.4th 1008, because none of his opinions were based on the quantity
limitations specified in the MMP. Indeed, Brandenburg did not even offer an expert
opinion about the quantity of marijuana that Hoang required for his medical needs.
Rather, he testified that in his experience, the number of plants in a marijuana garden was
a factor which distinguished a personal use garden from a commercial grow house. As
our Supreme Court has recently affirmed, “ ‘[i]n cases involving possession of marijuana
and heroin, it is settled that an officer with experience in the narcotics field may give his
opinion that the narcotics are held for purposes of sale based upon matters such as
quantity, packaging, and the normal use of an individual. On the basis of such testimony
convictions of possession for purposes of sale have been upheld. [Citations.]’ ” (Dowl,
supra, 57 Cal.4th at p. 1084.) Thus, Brandenburg’s ultimate opinion regarding Hoang’s
intent to sell marijuana was not objectionable solely because it was based in part on the
size of the Pinehaven garden. (Ibid.)
D. Jury Instructions
Hoang contends the trial court erred by (1) rejecting a special pinpoint jury
instruction regarding Hoang’s CUA defense, and (2) failing to instruct sua sponte that
testimony by a law enforcement witness is not entitled to any special weight.
15
1. Legal Principles and Standard of Review
“A trial court must instruct the jury, even without a request, on all general
principles of law that are ‘ “closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case.” [Citation.] In addition, “a defendant
has a right to an instruction that pinpoints the theory of the defense . . . .” ’ [Citation.]
The court may, however, ‘properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially confusing
[citation], or if it is not supported by substantial evidence [citation].’ [Citation.]”
(People v. Burney (2009) 47 Cal.4th 203, 246.)
“We review defendant’s claims of instructional error de novo. [Citations.]”
(People v. Johnson (2009) 180 Cal.App.4th 702, 707.) “ ‘ “In determining whether error
has been committed in giving or not giving jury instructions, we must consider the
instructions as a whole . . . [and] assume that the jurors are intelligent persons and
capable of understanding and correlating all jury instructions which are given.
[Citation.]” ’ [Citation.] “Instructions should be interpreted, if possible, so as to support
the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.” [Citation.]’ [Citation.]” (Ibid.)
2. The Pinpoint Instruction
As discussed earlier, the trial court used a version of CALCRIM No. 2370 to
instruct the jury about Hoang’s CUA defense. However, the court denied Hoang’s
request to supplement that model instruction with the following special instruction:
“Pursuant to the Compassionate Use Act, a qualified patient has a doctor’s
recommendation permitting the use of medicinal marijuana. [¶] A qualified patient may
possess an amount of marijuana consistent with the patient’s needs. Only the dried
mature processed flowers of female cannabis plant shall be considered when determining
allowable quantities of marijuana under this section.”
At trial, Hoang argued he was entitled to this instruction because “allowing the
jury to understand what part of the marijuana plant is controlled by the California
Compassionate Use Act will allow us to put forth our complete defense.” However, the
16
trial court found the special instruction was an incorrect statement of the law and likely
would mislead the jury. On appeal, Hoang insists his special instruction correctly states
the law and without it the jury could not fully or fairly evaluate his CUA defense. We
agree with the trial court.
The first sentence of Hoang’s special instruction is duplicative of the CUA defense
instruction which was given to the jury in this case, except to the extent it could be
interpreted as instructing the jury to assume that the marijuana recommendation produced
at trial automatically qualified Hoang for CUA protection, and, to that extent, giving the
instruction would have been error since the question whether Hoang was protected by the
CUA was for the jury to decide. The second sentence of the special instruction is
incomplete and misleading because it fails to instruct that the amount of marijuana must
be consistent with the patient’s current medical needs. (See Kelly, supra, 47 Cal.4th at
p. 1049.) Finally, the third sentence is inaccurate because, contrary to Hoang’s repeated
contentions in this case, the CUA does not state that “[o]nly the dried mature processed
flowers of [the] female cannabis plant shall be considered when determining allowable
quantities of marijuana under this section.”
Hoang insists his special instruction is legally correct because it “mirrors the
statutory language” in section 11362.77. This argument fails for two related reasons.
First, the special instruction does not “mirror” section 11362.77, but rather its third
sentence misleadingly paraphrases isolated language from subdivision (d) of that
17
provision.4 Second, section 11362.77, subdivision (d) is part of the MMP, it is not part of
the CUA, and thus does not belong in a pinpoint instruction purporting to describe the
protections afforded by the CUA.
As discussed at the outset of our analysis, the MMP serves a different function
than the CUA; that program protects qualified patients from arrest for unlawful
cultivation, possession and other offenses provided that certain quantity limitations which
are set forth in section 11362.77 are met. Subdivision (d) of that section, the source of
Hoang’s special instruction, provides that when calculating the allowable quantity of
marijuana that a qualified patient may possess under the MMP, “[o]nly the dried mature
processed flowers of [the] female cannabis plant or the plant conversion shall be
considered.” Unlike the MMP, the CUA does not impose specific quantity restrictions on
protected individuals, but instead requires a determination by the trier of fact as to
whether the amount of marijuana possessed and/or cultivated by the defendant was
4
Section 11362.77 states: “(a) A qualified patient or primary caregiver may
possess no more than eight ounces of dried marijuana per qualified patient. In addition, a
qualified patient or primary caregiver may also maintain no more than six mature or 12
immature marijuana plants per qualified patient. [¶] (b) If a qualified patient or primary
caregiver has a doctor’s recommendation that this quantity does not meet the qualified
patient’s medical needs, the qualified patient or primary caregiver may possess an
amount of marijuana consistent with the patient’s needs. [¶] (c) Counties and cities may
retain or enact medical marijuana guidelines allowing qualified patients or primary
caregivers to exceed the state limits set forth in subdivision (a). [¶] (d) Only the dried
mature processed flowers of female cannabis plant or the plant conversion shall be
considered when determining allowable quantities of marijuana under this section.
[¶] (e) The Attorney General may recommend modifications to the possession or
cultivation limits set forth in this section. These recommendations, if any, shall be made
to the Legislature no later than December 1, 2005, and may be made only after public
comment and consultation with interested organizations, including, but not limited to,
patients, health care professionals, researchers, law enforcement, and local governments.
Any recommended modification shall be consistent with the intent of this article and shall
be based on currently available scientific research. [¶] (f) A qualified patient or a person
holding a valid identification card, or the designated primary caregiver of that qualified
patient or person, may possess amounts of marijuana consistent with this article.”
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reasonably related to the defendant’s current medical needs. (Kelly, supra, 47 Cal.4th at
p. 1049.)
In this case, Hoang does not dispute the jury received an accurate instruction
regarding his CUA defense. To the extent his special instruction was not duplicative of
the instruction that was given, it was misleading, confusing and inaccurate. Thus, the
trial court did not err by refusing to give it.
3. Witness Credibility
Hoang contends the trial court failed to discharge its sua sponte duty to instruct the
jury on general principles of law closely connected with the case because the jury was not
told that testimony by law enforcement witnesses is not entitled to any special weight.
Hoang insists this principle was crucial in this case because all of the prosecution
witnesses were members of law enforcement.
The trial court used CALCRIM No. 226 to instruct the jury regarding the general
principles of law pertaining to the credibility of witnesses. Thus, the jury was told: “You
alone must judge the credibility or believability of the witnesses. In deciding whether
testimony is true and accurate, use your common sense and experience. You must judge
the testimony of each witness by the same standards, setting aside any bias or prejudice
you may have. [¶] You may believe all, part, or none of any witness’s testimony.
Consider the testimony of each witness and decide how much of it you believe.” The
jury was also instructed that, in evaluating witness testimony, it could “consider anything
that reasonably tends to prove or disprove the truth or accuracy of that testimony,” and it
was provided with a nonexclusive list of potentially relevant factors to consider when
conducting that evaluation. The jury was further instructed that the meaning and
importance of the opinions offered by experts in this case was for the jury “to decide,”
that in evaluating the “believability of an expert witness,” it should “follow the
instructions about the believability of witnesses generally,” and that it was free to
disregard any opinion that it found “unbelievable, unreasonable, or unsupported by the
evidence.”
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These instructions were sufficient to discharge the trial court’s sua sponte duty to
instruct regarding the general principles of law pertaining to witness credibility. They
clearly and accurately conveyed the principle that all witnesses, including experts, were
subject to the same credibility evaluation and that it was up to the jury to assess their
believability. Indeed, if the court had singled out law enforcement witnesses in a separate
instruction, it could have been criticized for drawing an artificial distinction that would
not have otherwise occurred to the jury.
Hoang mistakenly relies on People v. Cummings (1993) 4 Cal.4th 1233
(Cummings). One issue in that appeal from a death penalty judgment was whether the
trial court erred by admitting testimony from a deputy sheriff about incriminating
statements he overheard while escorting appellant and a codefendant to their cells during
a break in the jury trial. The appellant argued that “admitting the testimony of a trusted
court officer, who had been involved in seating and escorting the jurors and relaying juror
messages to the court, would deny due process and a fair and impartial trial.” (Id. at
p. 1289.) Rejecting this claim, the Cummings court found that the deputy was not a
principal or key prosecution witness, had relatively little and purely professional direct
contact with the members of the jury, and was promptly removed from those duties when
he became a witness. In addition, “[t]he jury was admonished that all witnesses’
testimony was to be judged on the same basis and that no greater weight should be
accorded to [the deputy] because he had been a deputy in the court.” (Id. at
pp. 1290-1291.)
Hoang contends that “Cummings requires a trial court to instruct a jury sua sponte
not to give an officer’s testimony any artificial weight merely because he is an officer.”
We disagree with this interpretation. As discussed above, the issue in Cummings
pertained to the admissibility of evidence, not the scope of the trial court’s sua sponte
duty to instruct on general principles of law. Furthermore, a specific incident occurred
during the Cummings trial which warranted a specific admonition about the deputy’s
testimony. Nothing comparable happened in this case. Finally, as reflected in the
admonition that was made to the jury in Cummings, the relevant general principle of law
20
is that “all witnesses’ testimony was to be judged on the same basis.” (Cummings, supra,
4 Cal.4th at pp. 1290-1291.) That principle was fully covered by the witness credibility
instructions that were given in this case.
Hoang also mistakenly relies on People v. Hanna (1939) 36 Cal.App.2d 333
(Hanna). The defendant in that case was convicted of attempted murder, attempted
robbery and related crimes. On appeal he argued the trial court erred by denying his
request to give the following jury instruction: “ ‘You are instructed that, in weighing
evidence of the police officers, care must be used because of their natural and
unavoidable tendency to procure and state evidence against the accused which will justify
their arrest of the accused.’ ” (Id. at p. 335, italics omitted.) The Hanna court found this
instruction was properly refused because “it is not the law that a police officer’s
testimony is to be judged by any other standard than that which applies to the average
witness.” (Id. at p. 337.) Hanna undermines Hoang’s argument in this case because it
illustrates that singling out police officer testimony in a special pinpoint instruction
creates the danger of misleading the jury to treat testimony by a law enforcement officer
differently than the average witness.
E. The Probation Condition
Hoang contends that if we affirm his drug convictions, this court must strike a
condition of his probation which restricts his “access” to medical marijuana.
1. Background
At the sentencing hearing, Hoang objected to a recommendation in the probation
report to impose a probation condition requiring him to abstain from using all controlled
substances including marijuana. Hoang argued that he has a medical recommendation to
use marijuana to address his “body ache and pain.” The prosecutor countered that the
evidence showed Hoang obtained a recommendation so that he could operate a marijuana
business. The prosecutor also pointed out that if the court were to allow Hoang to
possess marijuana, “then under medical marijuana laws he’s allowed to grow it,” and if
both those activities are authorized, the same events that led to this case would likely
recur. According to the prosecutor, “what is usually done in cases like this,” is to give
21
the probation officer discretion to authorize medicinal use if an untainted
recommendation is produced.
As the sentencing hearing progressed, Hoang also objected to statements in the
probation report that the amount of marijuana discovered at Pinehaven far exceeded the
recommendation of the prescribing doctor and that Hoang was part of a larger
commercial marijuana operation. Defense counsel was adamant that Dr. Hopkins’s
recommendation was valid and that it authorized Hoang to grow and maintain the
Pinehaven garden for his personal needs. The trial court observed that the jury obviously
disagreed with these contentions.
After the parties completed their arguments, the trial court stated that the
circumstances that most strongly influenced its sentencing determination were that Hoang
had committed a theft of utility services and that he had abused the medicinal marijuana
statutes. The court also acknowledged that Hoang had no significant prior record, and
that this was not “the crime of the century,” but it nevertheless found that this was a
“serious” case. In light of these circumstances, the court sentenced Hoang to a term of
three years supervised probation, imposing conditions which included drug testing and
counseling as directed by the probation department.
The trial court also imposed the following condition regarding abstention from the
use of controlled substances: “I’m not going to require abstention from alcohol, but I will
. . . require abstention from the use of controlled substances at this time including
marijuana and submit to chemical testing, however, I’ll allow the probation department to
review any marijuana request and propose[d] prescription with Mr. Hoang. They can
seek to modify this probation to include that if they think it’s appropriate.”
2. Analysis
“The Legislature has placed in trial judges a broad discretion in the sentencing
process, including the determination as to whether probation is appropriate and, if so, the
conditions thereof. [Citation.] A condition of probation will not be held invalid unless it
‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
22
reasonably related to future criminality. . . .’ [Citation.]” (People v. Lent (1975) 15
Cal.3d 481, 486, fn. omitted (Lent).)
The “Lent test” is “conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term. [Citations.] As such, even if a
condition of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is valid as long as
the condition is reasonably related to preventing future criminality. [Citation.]’
[Citations.]” (People v. Leal (2012) 210 Cal.App.4th 829, 840 (Leal).)
Here, the record demonstrates that the trial court properly exercised its discretion
by imposing a probation condition that required Hoang to refrain from using all
controlled substances, but authorized the probation department to seek a modification if
Hoang produced persuasive evidence of a medicinal need to use marijuana. This
condition was directly related to two of the Lent factors—Hoang’s convictions for
unlawful cultivation and possession with intent to sell and his future criminality. (Lent,
supra, 15 Cal.3d at p. 486.) The trial evidence showed that Hoang committed his
offenses by abusing a medical marijuana recommendation and, as the trial court found,
the prior abuse justified a future restriction. (See, e.g., People v. Brooks (2010) 182
Cal.App.4th 1348, 1353.) Furthermore, the restriction that the court imposed was subject
to future modification provided Hoang could make a satisfactory showing of medical
need.
On appeal, Hoang contends that the trial court abused its discretion because it
failed to consider the competing public policies implicated by the court’s interference
with his use of medical marijuana. To support this argument, Hoang relies on Leal,
supra, 210 Cal.App.4th 829. In Leal, a jury convicted the defendant of possession of
marijuana for sale while armed. At sentencing, the court also disposed of another
marijuana charge that arose while defendant was on bail awaiting trial in the first case.
The trial court sentenced the defendant to probation with a condition forbidding him to
use marijuana even for medical reasons. (Id. at p. 833.) The Leal court affirmed the
23
judgment, rejecting appellant’s contention that the trial court abused its discretion by
imposing the probation condition. (Ibid.)
Although the Leal court incorporated the Lent test into its review, it found that an
additional inquiry was necessary in order to evaluate whether the trial court properly
exercised its discretion by imposing the marijuana restriction. (Leal, supra, 210
Cal.App.4th at pp. 843-844.) Specifically, the Leal court balanced the competing public
policies that arise when a defendant has a CUA authorization to use medical marijuana
and yet the relationship of his lawful use of marijuana to his crimes or his future
criminality establishes a need to rehabilitate him and protect the public during his release
on probation. (Id. at p. 844.)
The Leal court opined that its balancing test would “vary widely from case to
case,” suggesting that it would likely be an abuse of discretion to impose a probation
condition banning the use of medical marijuana pursuant to the CUA by a person
suffering from end-stage pancreatic cancer, but recognizing that “[f]ar more commonly,
of course, the rehabilitative/protective need could outweigh a lesser medical need, or one
that could be efficaciously met by alternative means.” (Leal, supra, 210 Cal.App.4th at
p. 844.) The Leal court found “abundant” evidence of a need to rehabilitate the appellant
and “no evidence of an overriding medical need,” notwithstanding the fact that the
appellant had a CUA authorization that had never been challenged in the lower court.
(Ibid.) Therefore, it concluded that appellant failed to show that the trial court’s “implicit
. . . finding that the balancing of needs favored prohibiting CUA use constituted an abuse
of discretion.” (Id. at p. 845, fn. omitted.)
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The Leal balancing test reinforces our conclusion that the challenged probation
condition was a proper exercise of the trial court’s discretion in this case.5 Even more so
than in Leal, here the prosecution vigorously challenged the validity of Hoang’s CUA
authorization, characterizing it at closing argument as a sham and a cover for Hoang’s
clandestine commercial marijuana operation. As discussed above, the jury rejected
Hoang’s CUA defense, and the trial evidence supported that result. Notwithstanding his
continued denials, Hoang’s convictions essentially establish that he was operating a
commercial marijuana grow house and that he used the CUA to shield himself from
discovery and prosecution. Thus, strong evidence establishes that precluding Hoang
from using marijuana unless and until he produces untainted proof of medical need would
serve a valuable rehabilitative function, and would protect the public while he is on
probation. Should a showing be made by Hoang during his probationary period that he
has a legitimate medical need for medicinal marijuana, the probation order provides for
modification of its conditions allowing such use. Therefore, the Leal balancing was
assiduously applied by the trial court in considering its order of probation.
IV.
DISPOSITION
The judgment is affirmed.
5
Strong language in the Leal opinion supports Hoang’s contention that a
probation condition restricting the use of medical marijuana must satisfy the Leal
balancing test. (See, e.g., Leal, supra, 210 Cal.App.4th at p. 844.) However, we reject
Hoang’s suggestion that the trial court must explicitly weigh the competing policies on
the record at the sentencing hearing. Leal itself affirmed a sentence based on the trial
court’s implicit finding that the competing policy concerns weighed in favor of imposing
a complete ban on marijuana use in that case. (Id. at p. 845.)
25
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
STREETER, J.
A139341, People v. Hoang
26