The opinion
Filed 12/19/16
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
THE PEOPLE, ) BR 052596
)
Plaintiff and Respondent, ) East Los Angeles Trial Court
)
v. ) No. 4CA14664
)
ONESRA ENTERPRISES, INC. and )
ANNA TYUTINA, )
)
Defendants and Appellants. ) OPINION
)
APPEAL from a judgment of the Superior Court of Los Angeles County, Melissa
Widdifield, Judge. Affirmed.
Law Offices of Stanley H. Kimmel and Stanley H. Kimmel; Alison Minet Adams for
Defendants and Appellants.
Michael N. Feuer, City Attorney, City of Los Angeles, Asha Greenberg, Assistant City
Attorney, and John R. Prosser, Deputy City Attorney, for Plaintiff and Respondent.
* * *
1
INTRODUCTION
Following a court trial, defendants Anna Tyutina and Onesra Enterprises, Inc. were
convicted of violating, on August 27 and 28, 2013, Los Angeles Municipal Code (LAMC)
sections 45.19.6.2, subdivision A,1 which prohibits operating or participating in a medical
marijuana business (MMB),2 and 12.21, subdivision A.1(a),3 which prohibits using a building,
land, or structure for an unpermitted use. Defendants raise a variety of contentions on appeal:
(1) the trial court erred in denying their Penal Code section 1118 motion for judgment of
acquittal; (2) they proved by a preponderance of the evidence that they qualified for a limited
immunity under LAMC section 45.19.6.3; (3) the instant prosecution was barred by tax
amnesty and state preemption of marijuana laws; (4) the action was improperly prosecuted as a
“nuisance” violation; and (5) the court committed structural error in limiting closing argument.
We affirm.
BACKGROUND FACTS
Prosecution witnesses Los Angeles Police Department Detective Ruben Moreno and his
partner Officer Lucerito Rodriguez testified that on August 27 and 28, 2013, they were doing a
“compliance check” and investigating Euphoric Caregivers, located at 10655 West Pico
Boulevard. Rodriguez testified Euphoric was not on the “Prop. D list” of MMB‟s which were
“probably” in compliance with Proposition D. On the above dates, the officers made contact
with customers who were seen entering and existing the storefront. The customers admitted to
1
LAMC section 45.19.6.2, subdivision A, provides, “It is unlawful to own, establish, operate,
use, or permit the establishment or operation of a[n] [MMB], or to participate as an employee,
contractor, agent or volunteer, or in any other manner or capacity in any [MMB].”
2
An MMB is defined, inter alia, as “Any location where marijuana is cultivated, processed,
distributed, delivered, or given away to a qualified patient, a person with an identification card, or a
primary caregiver.” (LAMC, § 45.19.6.1, subd. A.)
3
LAMC section 12.21, subdivision A.1(a), entitled, “Permits and License,” provides in relevant
part, “No building or structure shall be . . . maintained, nor shall any building, structure, or land be
used . . . for any use other than is permitted in the zone in which such building, structure, or land is
located and then only after applying for and securing all permits and licenses required by all laws and
ordinances.”
2
purchasing marijuana from Euphoric; presented their medical marijuana card or a doctor‟s
recommendation for marijuana; and showed the officers the marijuana they purchased at
Euphoric. The officers formed the opinion that Euphoric was distributing marijuana to
qualified patients. Rodriguez testified she did not determine whether Euphoric had a business
tax registration certificate (BTRC) or “any licensed required by the City” as part of her
investigation.
Valentino Powell testified that either on August 27 or August 28, 2013, he purchased
marijuana with a physician‟s recommendation at Euphoric and that he was served by Gabriel
Davis. When asked whether he knew Tyutina and whether she “typically” served him at
Eurphoric, Powell answered, “No.”4
At the close of the People‟s case-in-chief, on September 15, 2015, the defense made a
motion for judgment of acquittal under Penal Code section 1118. Defense counsel argued that
the People‟s evidence failed to prove that defendants operated an MMB without the proper
licenses required under section 12.21 and there was no evidence that Tyutina operated Euphoric
on the charged dates. The court denied the motion.
Defense witness Gabriel Davis testified he was hired by either Tyutina or her stepfather,
Arsen Ordoukhanian, in 2007 to distribute marijuana at Euphoric.5 Davis testified that either
Tyutina or her stepfather was the CEO of Onesra, and that only Tyutina and her stepfather were
signers on Onesra‟s checking account. Davis identified defense exhibit J as a check bearing
Tyutina‟s signature. Davis also identified defense exhibit D as the “original 2007 registration
for taxation for medical marijuana.” Davis testified that Onesra had both an “L044 license and
[a] L050 license” which were renewed by the payment of taxes each year. He also testified
Onesra received a bill for its “Measure M” license which was paid, and that Onesra had tax
amnesty. Davis identified numerous defense exhibits that were admitted in evidence.
DISCUSSION
4
People‟s exhibits 1 through 9 were received into evidence.
5
It is undisputed that Onesra was doing business as Euphoric Caregivers.
3
Proposition D, approved by the voters in 2013, added article 5.1 (LAMC, § 45.19.6
et seq.) to chapter IV of the LAMC to regulate MMB‟s. LAMC section 45.19.6.2,
subdivision A, makes it “unlawful to own, establish, operate, use or permit the establishment
or operation of a[n] [MMB] . . .” in the city. LAMC section 45.19.6.3, however, provides an
exception or limited immunity for MMB‟s “that meet a litany of requirements . . . .” (Safe Life
Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029, 1037 (Safe Life).)
Penal Code Section 1118 Motion
On appeal, defendants contend the trial court erred in denying their Penal Code
section 1118 motion. “Section 1118 was designed to terminate a prosecution for an offense or
offenses at the earliest possible time when the prosecution‟s own evidence is insufficient to
support a conviction. [Citations.]” (People v. Norris (2002) 95 Cal.App.4th 475, 479.)
“Section 1118 . . . establishes a procedure for summary acquittal when the prosecution presents
insufficient evidence of a criminal charge during its case-in-chief. It provides in relevant part,
„In a case tried by the court without a jury . . . the court on motion of the defendant or on its
own motion shall order the entry of a judgment of acquittal of one or more of the offenses
charged in the accusatory pleading after the evidence of the prosecution has been closed if the
court, upon weighing the evidence then before it, finds the defendant not guilty of such offense
or offenses.‟” (Id. at p. 478.)
LAMC section 12.21, subdivision A.1(a)
LAMC section 12.21, subdivision A.1(a), provides that it is illegal to maintain or use a
building or structure “for any use other than is permitted in the zone in which such building,
structure, or land is located and then only after applying for and securing all permits and
licenses required by all laws and ordinances.” (Italics added.)
Here, prosecution witnesses testified that Onesra was operating an MMB, and
defendants do not dispute that the operation of an MMB is not a permitted use under the city‟s
zoning code. Contrary to defendants‟ claim, however, the People were not required to present
evidence of “permits and licenses” as part of their case-in-chief. The permits and licenses
referred to in LAMC section 12.21, subdivision A.1(a), are those that legally permitted
4
businesses must obtain in order to operate. (See Art. 2, Specific Planning—Zoning
Comprehensive Zoning Plan, § 12.00 et seq.) They are not the ones required to qualify for
limited immunity under LAMC section 45.19.6.3. Such proof must be made by a defendant as
part of his affirmative defense. (See People v. West Valley Caregivers, Inc. (2015) 242
Cal.App.4th Supp. 24, 35-36.)
Tyutina
We also reject the claim that there was insufficient evidence to support the LAMC
sections 45.19.6.2, subdivision A, and 12.21, subdivision A.1(a), charges against Tyutina. A
corporate officer is subject to criminal prosecution whenever he or she knowingly participates
in the corporation‟s illegal conduct. (People v. Toomey (1984) 157 Cal.App.3d 1, 15.)
Although there was no testimony by the officers as to Tyutina‟s involvement in the MMB, the
People submitted exhibits in support of their case-in-chief against her. None of these trial
exhibits, however, were transmitted to this court (see Cal. Rules of Court, rule 8.870),6 and we
must presume they would have supported the court‟s order denying the section 1118 motion as
to her. (See People v. Leonard (2014) 228 Cal.App.4th 465, 478 [“„“order of the lower court is
presumed correct. All intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown”‟”].)
Immunity—LAMC Section 45.19.6.3, Subdivision E
In regard to LAMC section 45.19.6.2, the trial court determined defendants did not
qualify for immunity under LAMC section 45.19.6.3 because they failed to satisfy the
registration requirement set forth in subdivision E—they were required to obtain a business tax
registration for taxation as a medical marijuana collective in 2011 and 2012 and failed to do so.
The court further found that the BTRC issued to Onesra in 2013 did not prove that the above
requirement was satisfied. The court stated, “the law is clear; the statute is clear. A [BTRC]
for a medical marijuana business had to be obtained in 2011 or 2012. And it wasn‟t done here.
6
After oral argument, defendants filed a motion for relief from default on September 23,
2016, requesting that we permit late transmittal of the trial exhibits. (See Cal. Rules of Court,
rule 8.870(b)(1).) The motion is denied for lack of good cause.
5
And on that basis alone, the court finds that beyond a reasonable doubt that Onesra is guilty of
violating . . . section 45.19.6.2 . . . .”
“Limited immunity from prosecution under LAMC section 45.19.6.2, subdivision A, is
unavailable as an affirmative defense where the MMB violates any of 15 restrictions set forth in
LAMC section 45.19.6.3.” (People v. Trinity Holistic Caregivers, Inc. (2015) 239 Cal.App.4th
Supp. 9, 16 (Trinity).) LAMC section 45.19.6.3, subdivision E, provides: “Every [MMB] is
prohibited that failed or fails to: (i) obtain a City business tax registration for taxation as a
medical marijuana collective in 2011 or 2012, and (ii) renew that business tax registration
within 90 days of the effective date of this Article and before each annual renewal deadline
thereafter.”
Defendants contend they should have been acquitted because they proved by a
preponderance of the evidence that they qualified for the limited immunity in LAMC
section 45.19.6.3. They maintain that at trial they presented a BTRC issued to “Onesra
Enterprises Euphoric Caregivers Proposition 215,” and that this registration was renewed by the
payment of tax for each subsequent year, including 2011 and 2012.
We cannot adequately assess this claim because the trial exhibits were not transmitted to
this court. In criminal appeals, “[e]xhibits admitted in evidence, refused, or lodged are deemed
part of the record, but may be transmitted to the appellate division only as provided in
[California Rules of Court, rule 8.870].” (Cal. Rules of Court, rule 8.870(a).) A party relying
on trial exhibits must arrange to have them transmitted to the appellate court. (Cal. Rules of
Court, rule 8.870(b) [request for transmittal of an exhibit must be made “[w]ithin 10 days after
the last respondent‟s brief is filed or could be filed under rule 8.882, if the appellant wants the
appellate division to consider any original exhibits that were admitted in evidence”].) As the
appellants, defendants have the responsibility to put before this court every part of the record
necessary to review claims asserted on appeal. (See, e.g., People v. Whalen (2013) 56 Cal.4th
1, 85 [“it is appellant‟s burden to present a record adequate for review and to affirmatively
demonstrate error”].) “Where exhibits are missing we will not presume they would undermine
the judgment. [Citation.]” (Western Aggregates, Inc. v. County of Yuba (2002) 101
6
Cal.App.4th 278, 291.) Trial exhibits concerning the BTRC‟s filed in 2007 and 2013 are not
before us. We must therefore conclude, based on the silent record, that the court‟s finding that
Onesra‟s registration for taxation as a medical marijuana collective occurred in 2013, and not in
2011 or 2012, was supported by the missing trial exhibits.7
Ambiguity—LAMC section 45.19.6.3, subdivision E’s disqualifying factor
Defendants contend subdivision E is ambiguous because it does not explain how
registration is accomplished. They assert that because subdivision E does not explicitly require
a business tax registration certificate to be issued in 2011 and 2012, their registration in 2007
and subsequent renewals satisfied subdivision E.8
“Issues of statutory construction are questions of law subject to independent review by
the appellate court. [Citation.]” (Smith v. Selma Community Hosp. (2010) 188 Cal.App.4th 1,
7
Notwithstanding the failure to timely transmit the trial exhibits, we nevertheless note the
appellate record contains a BTRC issued to “Onesra Enterprises [¶] Euphoric Care Givers [¶] PROP
215” in 2007, which was attached to defendant‟s Request for Judicial Notice in Support of Invitation to
Dismiss filed in the trial court. Even assuming that this BTRC was the same one admitted at trial,
defendants‟ claim that it proved the requisite registration fails. On the certificate, under “description,”
it states “retail sales,” and under “fund/class,” it states “L044.” The court found a different BTRC was
issued to Onesra in 2013, and that it evidenced registration in the proper category for taxation. This
exhibit (People‟s exhibit 9) was likewise not transmitted to us. A BTRC issued on October 25, 2013, is
attached as another exhibit to the aforementioned request for judicial notice. On the certificate, under
“description,” it states “medical marijuana collectives,” and under “fund/class,” it states “L050.”
Assuming this BTRC was the one admitted at trial, we conclude the court reasonably found it was
evidence of registration for taxation as a medical marijuana collective, and that registration as such
occurred in 2013. (See People v. Disa (2016) 1 Cal.App.5th 654, 664.)
8
Defendants argue that subdivision E‟s use of the present tense—“fails”—makes it uncertain
when registration must occur and that because it refers to registration “in 2011 or 2012,” it can be
construed “to allow registration in either 2011 or 2012.” We do not see how such arguments advance
defendants‟ position that they registered in 2007.
In any event, this is not what the statute plainly says. In the case of “failed or fails,” the
disjunctive is used because there are two subsections concerning past and present actions of the
defendant. (See People v. Vasquez (2016) 247 Cal.App.4th 513, 519 [“„“When used in a statute, the
word „or‟ indicates an intention to designate separate, disjunctive categories”‟”].) It is evident that the
past tense “failed”—and not the present tense “fails”—must be ascribed to a defendant‟s failure to
obtain registration in 2011 and 2012, as such events would necessarily have occurred in the past. As to
the second “or” in “2011 or 2012,” it is not referring to a defendant‟s registration of an MMB, but
rather to the failure to obtain registration of the MMB. Thus, the use of the disjunctive clearly
expresses that the failure to obtain registration either in 2011 or 2012 will suffice to disqualify the
defendant from immunity.
7
20.) “When statutory language is clear and unambiguous—that is, has only one reasonable
construction—courts usually adopt the literal meaning of that language. [Citations.] An
exception to this general rule exists for situations where a literal construction would frustrate
the purpose of the statute or produce absurd consequences. [Citation.]” (Id. at p. 21.) “When
statutory language is ambiguous, courts must „“„select the construction that comports most
closely with the apparent intent of the Legislature, with a view to promoting rather than
defeating the general purpose of the statute, and avoid an interpretation that would lead to
absurd consequences.‟ [Citation.]”‟ [Citation.]” (Ibid.)
Subdivision E expressly provides that an MMB is prohibited if it “failed or fails to:
(i) obtain a City business tax registration for taxation as a medical marijuana collective in 2011
or 2012, and (ii) renew that business tax registration . . . .” Based on the plain reading of the
statute, it is clear when registration under subdivision E must occur—in 2011 and 2012.
Defendants‟ claim that the subdivision leaves ambiguous how to prove registration is belied by
the fact that both they and the People submitted to the court BTRC‟s as evidence of registration
for taxation as an MMB—a clear indication that no ambiguity exists.
Rule of lenity
Defendants advocate the application of the rule of lenity. “„“That rule generally requires
that „ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendant
the benefit of every reasonable doubt on questions of interpretation.”‟” (People v. Osuna
(2014) 225 Cal.App.4th 1020, 1035.) To justify invoking the rule, “„“„“there must be an
egregious ambiguity and uncertainty . . . .”‟ [Citation.]” [Citation.]‟ [Citation.]” (Ibid.) As
we have concluded there is no ambiguity, the rule does not apply. (See Trinity, supra, 239
Cal.App.4th at p. Supp. 21.)
Substantial compliance
Defendants maintain that they substantially complied with subdivision E by registering
in 2007 and by paying their taxes, including those due under the city‟s tax amnesty program.
We must reject this claim as it relies on an erroneous reading of the statute and on the
aforementioned missing trial exhibits. Moreover, this court, in considering a different
8
registration requirement (LAMC § 45.19.6.3, subd. B) in Trinity previously held “[t]he
substantial compliance doctrine has no application . . . .” (Id. at p. Supp. 19.) We reach the
same conclusion here. “Even if a statute is considered mandatory, substantial compliance may
suffice in some circumstances if the purpose of the statute is satisfied. [Citations.]” (People v.
Carroll (2014) 222 Cal.App.4th 1406, 1420-1421.) However, in the context of the city‟s ban
on MMB‟s and the stringent standard for immunity, we conclude substantial compliance would
defeat the purpose of the statute, which is to stem the proliferation of MMB‟s and their
deleterious effects in the city. (Trinity, supra, 239 Cal.App.4th at p. Supp. 21 [“the statute‟s
stated intent was also to „stem the negative impacts and secondary effects associated with the
ongoing [MMB‟s] in the City‟”].)
Preemption
Defendants contend the holding in Kirby v. County of Fresno (2015) 242 Cal.App.4th
940 (Kirby) applies to the instant case and we must reverse based on the state‟s preemption of
medical marijuana laws. We disagree.
In Kirby, the plaintiff filed a declaratory relief action asserting that a county ban on
possession and cultivation of marijuana was preempted by state law that permitted her to
cultivate medical marijuana for personal use. (Kirby, supra, 242 Cal.App.4th at p. 947.) “The
Kirby court concluded that a very narrow portion of the county ordinance at issue was
preempted; specifically, the county‟s absolute ban on individual cultivation, punishable as a
misdemeanor, was preempted by that portion of the [Medical Marijuana Program Act
(MMPA)] which protects qualified patients with valid medical marijuana identification cards
from arrest for possession or cultivation of medical marijuana. [Citations.] The MMPA‟s
protection of those individuals against arrest prohibits prosecutions under local ordinances for
the same conduct. [Citation.]” (Safe Life, supra, 243 Cal.App.4th at p. 1050, fn. 26.)
Kirby is distinguishable. The ordinance in that case was an absolute ban on marijuana
cultivation and conflicted with the MMPA, which provided immunity from arrest and
9
prosecution for medical cultivation. Unlike the ordinance in Kirby, LAMC section 45.19.6.2
does not criminalize personal use or cultivation; it is a ban on MMB‟s.9
Moreover, the California Supreme Court has made clear that municipalities have the
authority to prohibit the distribution of medical marijuana within their jurisdictions “by
declaring such conduct on local land to be a nuisance, and by providing means for its
abatement.” (City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc.
(2013) 56 Cal.4th 729, 762, fn. omitted.) The MMPA specifically authorizes local regulation
of the establishment, operation, and location of MMB‟s. (Health & Saf. Code, § 11362.83.)
“The legislature amended [the MMPA], effective January 1, 2012, to read . . . : [¶] „Nothing in
this article shall prevent a city or other local governing body from adopting and enforcing any
of the following: [¶] (a) Adopting local ordinances that regulate the location, operation, or
establishment of a medical marijuana cooperative or collective. [¶] (b) The civil and criminal
enforcement of local ordinances described in subdivision (a). . . .‟ [Citations.]” (Conejo
Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534, 1545-1546, original
italics.) Indeed, Kirby itself acknowledged “local governments may regulate or ban the
cultivation of medical marijuana because land use regulations are not preempted by the . . .
MMP[A].” (Kirby, supra, 242 Cal.App.4th at p. 970.)
Tax Amnesty
Defendants contend the instant prosecution was also barred by the city‟s tax amnesty
program. (LAMC, § 21.12.1 et seq.) Defendants maintain that Onesra qualified for amnesty
and timely paid its taxes under the program and therefore “no criminal prosecution can be filed
on account of alleged non-payment, late payment, or incomplete payment of taxes.” The claim
is without merit. Tax amnesty bars prosecution for underreporting, nonreporting, or
nonpayment of taxes. (See River Garden Retirement Home v. Franchise Tax Bd. (2010) 186
Cal.App.4th 922, 950-951.) The instant criminal prosecution, however, was not the result of
9
Safe Life disagreed with the appellants‟ contention that “Prop D is preempted under Kirby.”
(Safe Life, supra, 243 Cal.App.4th at p. 1050, fn. 26.) It stated that “Kirby confirmed . . . that local
ordinances could still prohibit this conduct as a matter of land use. [Citation.]” (Ibid.)
10
defendants‟ tax liability, but rather the illegal operation of an MMB without qualifying for
immunity.
Zoning Violation
Defendants argue the court erroneously “heard the case as . . . a nuisance violation when
it is in fact a zoning violation” and improperly excluded evidence in support of their affirmative
defense based on preexisting nonconforming use. We deem the contention forfeited based on
the lack of meaningful legal analysis. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Defendant has also failed to demonstrate prejudice. (People v. Fields (2009) 175
Cal.App.4th 1001, 1018 [“„It is . . . well settled that the erroneous . . . exclusion of evidence
does not require reversal except where the error . . . caused a miscarriage of justice‟”].) “A
legal nonconforming use is one that existed lawfully before a zoning restriction became
effective and that is not in conformity with the ordinance when it continues thereafter.
[Citations.]” (Hansen Brothers Enterprises, Inc. v. Bd. of Supervisors (1996) 12 Cal.4th 533,
540, fn. 1.) Here, defendants have failed to establish that they were entitled to assert this
affirmative defense—that the operation of their MMB was a permitted use under the
premoratorium LAMC‟s commercial use classifications. (See City of Monterey v. Carrnshimba
(2013) 215 Cal.App.4th 1068, 1091; Conejo Wellness Center, Inc. v. City of Agoura Hills,
supra, 214 Cal.App.4th at pp. 1543-1544.)10
Structural Error
10
Defendants in their opening brief allude to due process and notice arguments “as . . . explained
in some detail in their trial brief.” We do not consider arguments incorporated by reference. (People v.
Stanley (1995) 10 Cal.4th 764, 793; Cal. Rules of Court, rule 8.883(a)(1)(A).) We note, however, that
at trial, defendants argued that Proposition D was subject to minimal procedural requirements pursuant
to Government Code section 65804. This court in People v. Optimal Global Healing, Inc. (2015) 241
Cal.App.4th Supp. 1, 9 held that “because Proposition D was enacted by voters rather than the City
Council, [Government Code section] 65804 . . . did not apply . . . .”
In their reply brief, defendants complain that “[t]he prosecution failed to introduce any evidence
of reasonable written notice, and refusal of [sic] failure to cure a public nuisance condition,” as required
by Penal Code section 373a. This argument seems counter to defendants‟ initial argument, that the case
should not have been prosecuted as a nuisance violation. In any event, because the Penal Code
section 373a claim is raised for the first time in the reply brief, it is waived. (People v. Clayburg (2012)
211 Cal.App.4th 86, 93.)
11
Finally, defendants‟ claim that “the court committed structural error when it limited
closing argument” to 20 minutes and “two issues” is undeveloped and unsupported by analysis
or citation to legal authority, and is thus forfeited. (People v. Clayburg, supra, 211 Cal.App.4th
at p. 93.) The claim is also forfeited because it was not raised in the trial court. (Ibid.)
DISPOSITION
The judgment of conviction is affirmed.
_________________________
B. Johnson, J.
We concur:
_________________________
P. McKay, P. J.
_________________________
Ricciardulli, J.
12