Opinion
C079455
09-12-2018
THE PEOPLE, Plaintiff and Respondent, v. MYK CARUANA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM040266)
A jury found defendant Myk Caruana guilty of transporting marijuana (Health & Saf. Code § 11360, subd. (a)) and not guilty of cultivating marijuana (§ 11358). At least with respect to the transportation offense, the jury rejected Caruana's defense based on the Medical Marijuana Program Act (MMPA) (§ 11362.7 et seq.). The trial court suspended imposition of sentence and placed Caruana on three years' formal probation.
Further undesignated statutory references are to the Health & Safety Code.
At all relevant times herein, section 11362.775 provided that "qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis 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."
On appeal, Caruana contends, inter alia, that his conviction for transportation of marijuana must be reversed because the 2015 amendment to section 11360 makes transportation for sale an element of the crime, and the jury made no such finding here. We agree and shall reverse the judgment and remand for possible retrial.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution
On October 17, 2013, California Highway Patrol Officer Joseph Phipps made a traffic stop on a large U-Haul truck on Highway 32 in Chico for a possible seatbelt violation. A sport utility vehicle (SUV) that had been traveling directly behind the truck stopped as well. When Phipps approached the U-Haul's open passenger-side window, he smelled raw marijuana.
Caruana, a passenger in the SUV, approached Phipps and explained that the people in the U-Haul and the SUV were his employees, and that they were traveling from one farm to another trimming marijuana bud. Caruana, who was wearing a shirt that read, "The Bud Barber," showed Phipps a recommendation to use marijuana and told Phipps that the U-Haul held five or six tubs, each containing about five pounds of trimmed marijuana bud.
Phipps contacted Butte County Sheriff's Detective Douglas Patterson, who worked in the special enforcement unit (also known as the marijuana unit), to come investigate. Patterson spoke to Caruana and looked in the back of the U-Haul. Inside the back of the U-haul there was a Twister machine, which is used to process and separate marijuana bud from the less desirable parts of a plant, along with approximately 52 pounds of marijuana bud, large buckets, and wooden-framed screens. Patterson told Phipps a crime had been committed, but he was too busy to investigate further. Phipps then called Brian White, a Detective with Butte Inter-Agency Narcotics Task Force (BINTF), to do a "marijuana investigation."
Detective White testified that a usable amount of marijuana is a tenth of a gram, and that the "large amount" of marijuana in the truck was "inconsistent with personal use." Caruana, however, did not claim that the marijuana in the truck was for his personal use. Caruana told White that he arranged for the transportation of the marijuana from one location to another but was unable to give a good description of either location. White opined that Caruana "possessed and was transporting the marijuana for profit, and was in violation of state law."
Jason Wines, an investigator with the Butte County District Attorney's Office who was assigned to the BINTF on the day in question, assisted Detective White with some of the interviews at the scene. Wines interviewed Caruana, who stated that he had come from the Bay Area "to assist marijuana farmers in trimming their marijuana" and was given the "trimmings," the inferior part of the plant as distinguished from the bud, in exchange for his work. Caruana explained that the marijuana in the truck belonged to Kala Kirkman, and that he had just been at Kirkman's residence processing it and was taking it to another location to finish. Caruana stated that his marijuana, which consisted of "trimmings," was back at Kirkman's drying. Caruana showed Wines his marijuana recommendation and said that he was part of some medical marijuana collectives but was unable to name any of them. Caruana offered Wines a binder of documents to look at, but Wines did not have an opportunity to review it.
Jacob Hancock, an investigator with the Butte County District Attorney, viewed "thebudbarber.com" Web page, which was linked to Caruana's Facebook page. The Web page provided information on marijuana-infused edible products and a list of dispensaries that carry those items. The Web page did not provide information about trimming, Caruana's membership in any collectives, the farmers, or whether the farmers were members of any collectives. B. The Defense
Pam Caruana had been married to Caruana for 26 years. They lived together in San Jose, California. Caruana injured his back while he was in the Air Force and the injury had worsened during their marriage. Caruana had a medical marijuana recommendation for the past 13 to 14 years and provided medical marijuana to collectives for the past four years.
To avoid confusion, we shall refer to Pam Caruana by her first name. No disrespect is intended. --------
Caruana and Pam formed a medical marijuana collective called The Bud Barber (also known as "Larry, Daryl, & Daryl"), which was a mutual benefit nonprofit corporation, registered with the Secretary of State. Caruana is called "The Bud Doctor" because he "goes out to farms and trims marijuana plants and brings the trim and [he and Pam] make medical marijuana products with it." The products are made in a commercial kitchen. All the farmers Pam and Caruana deal with are medical marijuana patients and members of The Bud Barber Collective. Their marijuana-infused products are distributed to dispensaries, which are separate collectives. Caruana's practice is to become a member of the dispensaries he visits. Pam was not aware of "anything" that would suggest that Caruana "was making money above and beyond the operating costs and his reasonable wages" producing and distributing the marijuana-infused products.
Dave Hodges is the operating manager of the All American Cannabis Club (also known as A2C2), a medical marijuana collective in San Jose, with about 14,000 members. Caruana had been a member of A2C2 since its formation in 2011. As outlined in its membership agreement, A2C2 does not sell marijuana. Rather, "people contribute to the production" of the marijuana. Members can contribute in a number of ways, "including monetarily or services provided or products provided." Some of its members who grow marijuana for themselves or as members of another collective give their excess marijuana to A2C2, and in return A2C2 reimburses the member for the cost incurred in producing and providing the marijuana. Caruana was one of those members.
Caruana also donated excess marijuana to A2C2 as a means of supporting Hodges's political activism related to marijuana. Hodges worked "to change the laws in San Jose for medical cannabis to be properly regulated." By donating excess marijuana, Caruana contributed "the overhead expenses of the collective, which included all the money that [it] put into this work."
Hodges explained that in October "the harvest comes in from the outdoor crops, and there is a very substantial amount of excess medication." Prior to October 2013, Hodges and Caruana discussed that a member of Caruana's collective had a "large amount" of excess marijuana that Caruana was going to donate to A2C2. Hodges did not know whether the farmer who cultivated the marijuana was a member of A2C2, but he believed that the farmer had a cultivation agreement with The Bud Barber, and because Caruana was a member of A2C2, the farmer would be considered a member of A2C2. Hodges acknowledged that the marijuana Caruana was transporting could have been from multiple farmers, and that he did not know for certain if all of the marijuana was destined for A2C2. The 50 pounds of marijuana that was being transported could have been used by A2C2 members and was reasonably related to its members' needs. C. Rebuttal
Detective Patterson, who worked in the special enforcement unit, testified as an expert in the cultivation and transportation of marijuana and the investigation of those crimes. On October 17, 2013, he responded to a call to assist Officer Phipps with the marijuana-related traffic stop involving Caruana, but Patterson only could spend about five minutes at the scene because he had to head out to execute a search warrant. Based on the trimmers in the truck, the marijuana, the drying racks, the crew, Caruana's statements, and his shirt, Patterson opined that Caruana was in Butte County for the purpose of the transportation, sale, and cultivation of marijuana. Patterson had never come across a marijuana farmer or transporter who gave away 50 pounds of marijuana without compensation. Patterson admitted, however, that he did not have knowledge of the expenses involved in operating a medical marijuana dispensary, nor did he have the knowledge to calculate the reasonable value of cultivation services.
DISCUSSION
Caruana contends that his conviction for transportation of marijuana must be reversed because the 2015 amendment to section 11360 makes transportation for sale an element of the crime, and the jury did not find that he transported the marijuana with the intent to sell it. We agree.
Section 11360 provides that any person who "transports" marijuana shall be punished by imprisonment. (§ 11360.) Courts had interpreted the word "transports" to include transport of controlled substances for personal use. (See People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. Eastman (1993) 13 Cal.App.4th 668, 673-674.) But the Legislature recently amended section 11360 to define " 'transport' " to mean "transport for sale." (§ 11360, subd. (c); see Assem. Bill No. 730 (2015-2016 Reg. Sess.).) The amendment took effect on January 1, 2016. (See Cal. Const., art. IV, § 8, subd. (c)(1).)
"[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed," if the amended statute takes effect before the judgment of conviction becomes final. (In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada); id. at p. 744.) The amendment to section 11360 satisfies the Estrada requirements.
First, the amended statute mitigates the punishment by adding an additional element to the crime of which Caruana was convicted. (See People v. Vinson (2011) 193 Cal.App.4th 1190, 1197-1199.) Second, the amended statute does not contain a saving clause. That omission, coupled with the benefit in a possibly reduced sentence to Caruana, shows the Legislature intended the amendments to apply retroactively. "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Estrada, supra, 63 Cal.2d at p. 745.) Third, the amendment took effect before the judgment is final. For purposes of determining the amendment's retroactive application, a judgment is not final until the time for petitioning the United States Supreme Court for a writ of certiorari has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Obviously, that time has not passed. Thus, as the People concede, Caruana is entitled to the benefit of the amendments to section 11360. Accordingly, we will reverse the judgment and remand for further proceedings.
We reject the People's contention that "the trial court's failure to instruct the jury on the new 'for sale' element and to require a finding for it was harmless beyond a reasonable doubt in light of the evidence presented which was sufficient to sustain a finding that he transported the marijuana for sale."
As a preliminary matter, the test is not whether there is sufficient evidence to sustain a finding that Caruana transported the marijuana for sale. As the People acknowledge, an instructional error that improperly omits an element of an offense is reviewed under the harmless error standard announced in Chapman v. California (1967) 386 U.S. 18 . (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Under the Chapman standard, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 ; Chapman, at p. 24.) More specifically, if, after reviewing the record as a whole, " 'the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task . . . is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' [Citations.]" (People v. Mil (2012) 53 Cal.4th 400, 417 (Mil).) Thus, even assuming for argument's sake that there was sufficient evidence to sustain a finding that Caruana transported the marijuana for sale, as the People contend, reversal is still required.
To sustain Caruana's conviction, we must conclude beyond a reasonable doubt that the intent to sell element was uncontested and supported by overwhelming evidence. (See Mil, supra, 53 Cal.4th at p. 417.) This we cannot do. There is evidence Caruana intended to donate the marijuana to A2C2. Moreover, there is no evidence that the officers found any weapons (other than an unloaded pellet gun in the SUV), sales ledgers, packing materials, scales, or other indicia of sales. While there is evidence that Caruana had been compensated for other marijuana and marijuana-infused products, it does not follow that he intended to sell the marijuana found in the U-Haul. Having reviewed the record in its entirety, we cannot confidently say that the verdict would have been the same had the jury been instructed on the intent to sell element. Accordingly, Caruana's conviction must be reversed and the matter remanded for potential retrial. (People v. Figueroa (1993) 20 Cal.App.4th 65, 72 ["Where . . . evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence."].)
DISPOSITION
The judgment is reversed, and the matter is remanded for possible retrial.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Duarte, J.