Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRBF06750
BUTZ, J.In a bench trial, defendant Thomas Martin Von Lahr II was convicted of possession of concentrated cannabis. (Health & Saf. Code, § 11357, subd. (a).) Imposition of sentence was suspended and defendant was placed on formal probation for three years on conditions including incarceration for 32 days with credit for 32 days served.
Undesignated statutory references are to the Health and Safety Code.
On appeal, defendant contends the trial court erred by concluding that the Compassionate Use Act of 1996 (§ 11362.5 et seq. [hereafter CUA]) does not apply to concentrated cannabis. The Attorney General concedes that the trial court erred in concluding that the Medical Marijuana Program Act (§ 11362.7 et seq. [hereafter MMPA]), enacted in 2003, “limit[s] the type of marijuana that a patient is permitted to possess under the CUA,” but claims the error is harmless beyond a reasonable doubt. Disagreeing only with this last contention, we shall reverse the judgment.
At the bench trial, the prosecution submitted the transcript from the preliminary hearing and a Department of Justice drug report as evidence. The defense made offers of proof of several facts.
Prosecution case-in-chief
On March 31, 2006, Siskiyou County Sheriff’s Deputy Richard Van Baren, Jr., stopped defendant’s car for a traffic violation. After obtaining his license and checking for warrants, Van Baren asked defendant if any marijuana was in the car. Defendant answered, “yes.” Van Baren then asked if he had a medical recommendation, and defendant replied that he did. Defendant admitted that he had approximately 50 pounds of “shake” marijuana in the car. “Shake” refers to the marijuana plant’s leaves and stems that are left over after the bud has been manicured. Defendant told Van Baren that he intended to use the shake to make “hash oil.”
A search of defendant’s car revealed a marijuana cigarette in an ashtray, 10 ounces of “processed bud” marijuana in a mason jar, two baby food jars containing hash oil, a digital scale, empty baggies, a duffel bag containing marijuana, and four large plastic trash bags filled with marijuana. The two baby food jars with hash oil weighed 77.8 grams and 192.1 grams. The hash oil was described as “black, kind of a thick liquid, very sticky kind of[,] a little thicker than syrup.” The shake weighed approximately 66 pounds. No pipe, bong, lighter, or matches were found in the car or on defendant.
The Attorney General argues, “There was no evidence that [defendant] had a pipe, bong, matches or a lighter.” More precisely, there was no evidence that defendant had any of those items on his person or in his car. No evidence supports the Attorney General’s inference that defendant did not possess those items at all.
Defendant gave Deputy Van Baren a photocopy of a medical recommendation for marijuana.
Siskiyou County Interagency Narcotics Task Force Agent Robert Gibson testified that 17.5 pounds of shake will produce approximately two pounds of hash oil. He explained that the shake is frozen, which causes tetrahydrocannabinol (THC) to come to the surface, “almost like sap would if you were to get syrup out of a maple tree.” The shake is tumbled in rollers or shakers, which causes the THC to fall out. The separated THC is a “real fine powder” that appears similar to pollen. The powder is concentrated cannabis.
A chemical process is used to turn the concentrated cannabis into hash oil. None of the required chemicals was found in the stopped car.
The Attorney General argues that defendant “did not possess chemicals commonly used to manufacture hash oil.” More precisely, none of the required chemicals was on defendant’s person or in his car. No evidence supports the Attorney General’s inference that defendant did not possess the requisite chemicals at all.
Agent Gibson testified that Deputy Van Baren provided him with photocopies of two medical marijuana prescriptions. Gibson contacted the issuing clinic and determined that the prescriptions were valid.
Defense
At the bench trial, the defense made offers of proof of the following facts:
Defendant is both a medical marijuana patient and the designated “primary caregiver” for his mother; in the latter capacity, he supplied concentrated cannabis for her use.
A physician examined defendant and his mother and recommended that they use marijuana for their medical conditions.
The physician opined that the quantity of concentrated cannabis that was found during the traffic stop was consistent with medical use of that substance by defendant and his mother.
Defendant possessed the “shake” marijuana for the purpose of making hash oil for medical use. He planned to use the shake to “make a tincture or a concentrate similar to the substance which has been referred to as hash oil in the preliminary hearing transcript.”
Defendant used the “tincture” or “concentrate” for his own medical purposes and, as a designated primary caregiver, supplied it to his mother for her medical purposes.
The “conversion ratio” between shake marijuana and concentrated cannabis is such that defendant had a two- to four-month supply in his possession when the offense occurred.
DISCUSSION
Defendant contends the trial court’s in limine ruling that the CUA does not apply to concentrated cannabis was error under state law and violated his federal right to present a defense. The Attorney General counters that the in limine ruling was harmless beyond a reasonable doubt. Defendant has the better argument.
Background
In February 2007, the trial court heard the prosecutor’s motions in limine. She argued that concentrated cannabis was not within the provisions of the CUA or “medical marijuana provisions.” She explained that concentrated cannabis was treated separately in the Health and Safety Code. (Citing § 11357, subd. (a).) She also argued that the MMPA defined marijuana as processed flowers of the female cannabis plant or the plant conversion. (Citing § 11362.77, subd. (d).) She interpreted “plant conversion” to mean “that where there are numerous hanging plants, it has to be converted, i.e., processed to determine how much dried, mature female flowers there are.” She noted that “[n]othing in the history of the [CUA] or the [MMPA] mentions the word hash or concentrated cannabis. Concentrated cannabis is a derivative of marijuana, but it is not marijuana.” She went on to claim that the MMPA has superseded a 2003 Attorney General’s opinion that concentrated cannabis is marijuana. (86 Ops.Cal.Atty.Gen. 180 (2003) [Compassionate Use Act of 1996].) She also provided some policy arguments as to why concentrated cannabis should not be considered within the purview of medical marijuana.
Section 11362.77 provides in relevant part:
Defense counsel countered that concentrated cannabis was “clearly contemplated within the medical marijuana provisions of the law if a person has a valid medical marijuana recommendation.” Counsel cited section 11362.765, subdivisions (a) and (b)(1), which provide that “[a] qualified patient . . . who transports or possesses marijuana for his or her own personal medical use” is not “[s]ubject to . . . criminal liability under Section 11357,” subdivision (a) of which expressly addresses concentrated cannabis. Counsel also relied on the 2003 Attorney General’s opinion and CALCRIM No. 2377 as supporting his view that concentrated cannabis is within the purview of the medical marijuana law.
In response, the prosecutor noted that neither the CUA nor the MMPA make any specific mention of concentrated cannabis. She argued that the CALCRIM instruction had been based on the Attorney General’s opinion, which she again claimed had been superseded.
Defense counsel argued that the term “plant conversion” in section 11362.77, subdivision (d), “has to have some meaning.” He argued that “plant conversion” means “something other than the traditional flower parts of marijuana,” such as “a tincture or a concentrate like hash or a cooking medium like butter.”
The trial court granted the motion in limine for the “reasons that have been presented in the People’s written motion and points and authorities as well as their oral presentation.” The court noted that it would modify CALCRIM No. 2377 “to eliminate any indication that concentrated cannabis is subject to the Compassionate Use Act.”
The trial court also heard the prosecutor’s motion in limine that defense counsel be precluded from arguing that “marijuana is legal or exempted by law.” Defense counsel countered that possession was “legal because there’s an absolute affirmative defense.” The court asked counsel, “What are you intending to argue to the jury with regard to the People’s position that defendant’s possession of the 66 or so pounds of so-called shake is illegal?” Counsel replied that his argument “is that the possession of the shake is, in fact, legal if, in fact, the jury finds that he is a qualified patient and the designated primary caregiver.”
The trial court inquired, “for the sake of argument, would you agree that if it was 66 pounds of marijuana flowers or buds, that that would clearly exceed the--any amount allowed under the Compassionate Use Act?” Defense counsel responded, “I have never encountered a case where a person who possessed 66 pounds of processed female flower parts is really asserting an argument that they are possessing that for their personal medical needs.” He went on to explain, “But there’s a big difference between shake, which is a very low concentration of THC, and the processed female parts . . . . The shake really has no medicinal value unless it’s somehow essentially boiled down into something more concentrated that has an actual medicinal effect.” He said that defendant obtains shake, which is regarded as a waste product, essentially for free and exerts the effort to make it into a useable medicine under the CUA and the MMPA.
The trial court granted the prosecution’s motion and limited the CUA defense to “female flowers” and “plant conversion,” which it held “does not contemplate the concentrated cannabis.” The court explained, “It doesn’t make sense from . . . a common sense point of view that someone can have all the so-called shake he or she might wish to have without any regulation whatsoever. That doesn’t make sense when we’re talking a large quantity such as 66 pounds and a statement from defendant that he intended to use it to make concentrated cannabis. It doesn’t seem to me that the law contemplates what would be essentially a wholesale legalization of everything but the female flowers.”
Defense counsel asked for clarification as to whether he would be precluded from presenting a CUA defense as to the shake. The court replied, “Essentially. And that’s based in part [on] the indication that the 66 pounds does not correlate to the medicinal portions of the plant, the eight ounces that we’ve talked about before. [¶] It might be different if we had a situation where the defendant was hauling off the refuse, so to speak, after he has processed out the flowered or budded portion, but that’s not what we have in this particular case. We have a situation where we’ve got a very large quantity of so-called shake with defendant’s statement that he intends to use that to create concentrated cannabis. And I just do not believe that it’s the intent of the Legislature or the People in the state of California in enacting Proposition 215 to allow that.”
Defense counsel made an offer of proof that a witness would testify to the limited amount of concentrate that could be obtained from the shake. The court declined to change its ruling. Thereafter, defendant waived his right to a jury trial, the prosecutor dismissed two related counts, and the case proceeded to a bench trial on the sole charge of possession of concentrated cannabis.
Analysis
In November 1996, voters in California approved Proposition 215, the CUA. (§ 11362.5; People v. Urziceanu (2005) 132 Cal.App.4th 747, 767 (Urziceanu).) “Its purpose is ‘[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes’ upon the recommendation of a physician.” (People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1436.) To this end, the CUA states that “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).)
In 2003, seven years after voters approved the CUA, the Legislature enacted the MMPA. (§ 11362.7; People v. Wright (2006) 40 Cal.4th 81, 93.) “In the [MMPA], the Legislature sought to: ‘(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. [¶] (2) Promote uniform and consistent application of the [CUA] among the counties within the state. [¶] (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.’” (Urziceanu, supra, 132 Cal.App.4th at p. 783, quoting Stats. 2003, ch. 875, § 1, subd. (b).) The Legislature also intended “‘to address additional issues that were not included within the [CUA], and that must be resolved in order to promote the fair and orderly implementation of the act.’” (Urziceanu, at p. 783, quoting Stats. 2003, ch. 875, § 1, subd. (c).)
To promote the Legislature’s intent, the MMPA directed the state Department of Health Services to establish and maintain a voluntary program for the issuance of “identification cards” to “qualified patients.” (§§ 11362.7, subd. (b), 11362.71, subd. (a)(1).) A “qualified patient” is “a person who is entitled to the protections of [the CUA], but who does not have an identification card issued pursuant to this article.” (§ 11362.7, subd. (f).) The primary benefit of possessing a valid identification card is that the holder is not “subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to [the MMPA].” (§ 11362.71, subd. (e).)
The MMPA establishes the following numerical limitations for possession of marijuana: “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.” (§ 11362.77, subd. (a).) These limitations apply to both “[a] qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person.” (§ 11362.77, subd. (f).) These numerical limitations do not apply “[i]f a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs.” (§ 11362.77, subd. (b).) In that case, “the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient’s needs.” (Ibid.)
Because these numerical limitations are not found in the CUA, this court recently concluded that the MMPA unconstitutionally amended the CUA. (People v. Phomphakdy (2008) 165 Cal.App.4th 857, review granted Oct. 28, 2008, S166565.) We concluded that section 11362.77, subdivision (a) can be severed without affecting the validity of the remaining portions of the MMPA.
Section 11362.77, subdivision (d) provides: “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.” The Attorney General concedes that this provision “does not limit the type of marijuana that a patient is permitted to possess under the CUA but purports to describe how the ‘allowable quantities’ in subdivision (a) would be determined.”
The Attorney General further concedes that the prosecutor in this case misinterpreted section 11362.77, subdivision (d) “to limit patients to possession of dried mature processed flowers of the female marijuana plant or ‘plant conversion,’” and that the trial court adopted this interpretation. We accept the Attorney General’s concession.
Because section 11362.77, subdivision (d)’s sole purpose is to provide interpretive guidance to subdivision (a), which we continue to believe must be severed from the MMPA, subdivision (d) is without purpose or effect and its application to this case was error.
The Attorney General contends the exclusion of a CUA defense was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]; People v. Saavedra (2007) 156 Cal.App.4th 561, 569 (Saavedra); People v. Salas (2006) 37 Cal.4th 967, 984 [standard of prejudice for failure to instruct on affirmative defense not yet defined]; see also People v. Demetrulias (2006) 39 Cal.4th 1, 23.) “Under the Chapman standard, an error is harmless if the record establishes beyond a reasonable doubt that the error did not contribute to the jury’s guilty verdict. [Citations.] ‘“The question is whether there is a reasonable possibility that [the error] contributed to the conviction.”’ [Citation.] ‘“To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.”’” (Saavedra, supra, 156 Cal.App.4th at p. 569.)
It is difficult to deem an error “unimportant” where, as here, it precluded the factfinder from “consider[ing]” any part of defendant’s sole defense. (Saavedra, supra, 156 Cal.App.4th at p. 569.) The Attorney General argues that the error was harmless because, had defendant presented evidence “that he possessed the concentrated cannabis for personal use pursuant to a medical marijuana recommendation, and as his mother’s caregiver, the prosecutor would have introduced evidence either in her case-in-chief or on rebuttal that the marijuana was possessed for sale.”
Thus, the Attorney General argues that the prosecutor could have presented Agent Gibson’s opinion that the shake was possessed for “the purpose of manufacturing it into hashish oil” and “for sale with the scales.” Arguably, a factfinder could deduce that the concentrated cannabis in the baby food jars, which was the sole basis for defendant’s conviction, was possessed for this same purpose.
However, Agent Gibson’s opinion would have been contradicted by defendant’s physician’s testimony that the seized marijuana shake represented a two- to four-month supply for personal use. The in limine ruling precluded the factfinder from resolving this factual issue.
Nor is it certain that the factfinder would have resolved the issue in favor of the prosecution. Agent Gibson’s opinion was based in part on the presence of the scale. The Attorney General argues, “[Defendant] would not have needed a scale to weigh marijuana for himself or his mother to consume.” But this argument overlooks the physician’s warning in his medical marijuana recommendation that defendant (and inferentially his mother) shall “[u]se the least amount of medical cannabis needed to relieve symptoms.” The Attorney General does not dispute that, as a primary caregiver, defendant had the responsibility to provide his mother the least amount necessary to relieve her symptoms. Nothing in the record suggests that the scale was inappropriate for that purpose. Nor is there any indication that Agent Gibson considered this purpose before forming his opinion that the scale was to be used to facilitate sales.
Moreover, the Attorney General’s argument does not consider the size of the scale. A searching deputy found the scale and some empty plastic baggies in “the little pouch on the back side of the driver’s seat.” Thus, neither the scale nor the baggies were very large. At best, they support a weak inference that defendant intended to weigh out and divide up the 66 pounds of unprocessed marijuana “shake,” which filled a 30- to 40-gallon garbage bag, on the small equipment and then package it in the small baggies.
A stronger inference is that any weighing would occur after, not before, the “shake” is processed into hash oil. But even that inference is tempered by the facts that the only hash oil found in this case was in liquid form and was packaged in glass jars, not plastic baggies. The inference that liquid hash oil would be packaged and sold in plastic baggies is not so compelling as to render the trial court’s error harmless beyond a reasonable doubt.
The Attorney General next notes that defendant “had no pipes, bongs, lighters, or matches.” But as we have noted, the evidence showed only that none of those items was present in the stopped car. (See fn. 3, ante.) Because no evidence showed or suggested that defendant’s (or his mother’s) consumption of marijuana occurred in the car, the items’ absence from that location has little evidentiary significance.
The Attorney General lastly argues that defendant’s “66 pounds of shake” was “significantly more” than the “nine pounds of marijuana that the defendant possessed in Phomphakdy.” This argument overlooks the conversion ratio of 17.5 pounds of shake to two pounds of hash oil, which suggests that defendant possessed the equivalent of 7.76 pounds of finished product. The Attorney General has not shown that the error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is reversed.
We concur: SCOTLAND, P. J., HULL, J.
“(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.
“[¶] . . . [¶]
“(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.”