Opinion
H045329
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. BLAKE CURTIS LEBECK et al., Defendants and Appellants.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
It is ordered that the opinion filed herein on November 27, 2019, be modified as follows:
On page 14, delete fourth sentence of the second full paragraph starting with "Specifically, they argue that former Board of Administration . . . ." And replace it with the following sentence "Specifically, they argue that former Business and Professions Code section 19341 (now § 26130) provided a defense to the charge of manufacturing a controlled substance for those who are properly licensed under the MMRSA."
There is no change in the judgment. /s/_________
ELIA, ACTING P. J. /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1662079)
A jury convicted defendants Blake Curtis Lebeck and Jeffrey Keith Lucas of various offenses arising out of their admitted involvement in the production of butane honey oil, a concentrated form of marijuana. Defendants challenge certain of their convictions on the ground that the trial court erred in excluding evidence of their mistaken beliefs that the cannabis processing operation was legal. They argue that the error was one of constitutional magnitude because it precluded them from presenting a defense based on either a mistake of law or a mistake of fact. Defendants also raise claims of instructional error, ineffective assistance of counsel, and cumulative error. We will affirm.
I. BACKGROUND
A. Factual Summary
While investigating large-scale drug sale and manufacturing operations, Officer Bret Moiseff received information that led him to obtain a warrant authorizing a search of a ranch-style property in Morgan Hill. At least 15 officers assisted in the search, on September 2, 2016. Upon arriving, officers used a speaker system to instruct everyone present to come to the front of the property with their hands showing. Defendant Lebeck came to the front of the property along with two other men. Officer Moiseff asked Lebeck whether there was a butane honey oil laboratory on the property and Lebeck indicated that there was such a laboratory located in a shed. Lebeck then gave Officer Moiseff a combination for a lock to access the shed.
According to Officer Moiseff, butane honey oil is a substance that is produced from marijuana using a chemical process. Officer Moiseff testified that the substance can be ingested using a smoking device. The officer also testified that he believed that butane honey oil could be combined with essential oils or other substances to be used as a medicated substance and that it could be ingested as an "edible," like a "brownie" or a "cookie."
Inside the shed, officers found equipment that could be used in the production of butane honey oil. This equipment included tubing, buckets, a scale, trays, and spatulas. During a further search of the property, officers also discovered approximately twenty large marijuana plants as well as a large amount of marijuana plant material that is "often referred to as shake." In total, officers recovered approximately 380 pounds of marijuana bulk material. They also found approximately three ounces of a substance that appeared to be butane honey oil. Officers also recovered an industrial-type tank labeled "butane" on the property along with drums labeled "methanol."
Officer Moiseff explained that "shake" is "leftovers" from the marijuana plant and that it is an ingredient used in the production of butane honey oil.
At trial, Officer Michael Short explained that the extraction of butane honey oil required four ingredients: (1) marijuana; (2) solvent; (3) an extraction tube; and (4) a collection chamber. He further testified that the butane honey oil extraction process involves pouring butane over marijuana and then extracting the "oily, waxy, sludge," material that is produced from the chemical process. Based on the large amount of ingredients needed for the production of butane honey oil and the presence of equipment that would be used in the process, Officer Short testified that he believed that butane honey oil was being produced on the property. Given that officers discovered such a large amount of marijuana on the property and in light of the amount of equipment present, Officer Short also believed that the butane honey oil was intended for sale.
Officer William Jurevich testified that he interviewed Lebeck on the front yard of the Morgan Hill property approximately 30 minutes after officers had initially arrived. The officer indicated that he read Lebeck his rights under Miranda v. Arizona (1966) 384 U.S. 436 and that Lebeck indicated that he understood his rights. According to Officer Jurevich, Lebeck then informed him that he rented the shed on the property to his friend "Ace" for $300 a month and that Ace used the property to produce butane honey oil. Lebeck also informed the officer that he had previously used the equipment in the shed to make Vaseline for friends who were suffering from arthritis. Lebeck stated that he had last operated machinery in the shed approximately 10 months earlier.
A week later, Officers Jurevich and Moiseff interviewed defendant Lucas. Lucas informed them that Ace was paying him $10 an hour "under the table" to operate the equipment that had been found in the shed on the Morgan Hill property. He also indicated that he was known as "the Captain" because he was responsible for filling plastic capsules with butane honey oil. Lucas stated that the men produced butane honey oil on the Morgan Hill property by placing marijuana into tubes and then forcing a solvent through the tubes. Lucas told the officer that they had butane delivered to the property and that he would check butane levels with a sensor every morning to make sure that it was safe to operate the equipment. Lucas then gave the officers permission to search his room. While searching his room, the officers discovered containers that contained an unspecified amount of butane honey oil. They also found methamphetamine.
B. Procedural History
The Santa Clara County District Attorney's office filed a first amended information charging defendants with manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); count 1), cultivation of marijuana (§ 11358, subd. (c); count 3), and possession of marijuana for sale (§ 11359, subd. (b); count 4). Lebeck also was charged with providing space for the sale and/or manufacture of a controlled substance (§ 11366.5, subd. (a); count 2) and Lucas was charged with possession of methamphetamine (§ 11377, subd. (a); count 5).
All further statutory references are to the Health and Safety Code unless otherwise specified.
At trial, the court granted the People's motion to dismiss the count 3 cultivation charge against Lucas.
Prior to trial, Lebeck moved in limine to introduce his statements to police that Ace "told him that the operation was legal because of the medical marijuana laws[,] . . . [and] that he took [Ace's] word for it that the operation was legal." Lucas joined in the motion, seeking to introduce his own statement to police that "he was told that [Ace] believed he possessed all the proper permits." Defendants argued that their statements were admissible under Evidence Code section 356 to explain their other statements to police—namely, their admissions concerning the operation of the lab. At a hearing on the motion, defense counsel argued that defendants' knowledge about the nature of the operation was relevant to whether they knew the marijuana and butane honey oil were possessed for sale. Defense counsel suggested that they might have believed that the marijuana was "going to a cooperative or a business that is legal to sell that . . . ." The trial court concluded that defendants' statements that they understood the operation to be legal were not admissible under Evidence Code section 356 because they did not answer or complete their statements that they knew about the operation of the lab. The court further concluded that a mistake of law was not a defense to the charges. Accordingly, the court excluded defendants' "statements that they had heard or knew from [Ace] that the operations were legal."
After closing arguments, Lucas's attorney asked to make a record of certain statements that her client had made in chambers about his "personal background and working in the medical marijuana industry." She explained that her client was "very frustrated with this process that we're not allowed to discuss medical marijuana." Counsel then stated that she believed that these were issues for sentencing but that defendant was "aggravated" that the jury could not hear these things. Defendant then interjected that "[t]his is all about the cannabis industry, the cannabis-made edibles," and that the "[c]ompassion law in 1995 was passed." Defense counsel then stated that she had explained the defendant's rights "about Marsden and Faretta" and that defendant had stated that he would like for her to continue to represent him.
People v. Marsden (1970) 2 Cal.3d 118; Faretta v. California (1975) 422 U.S. 806.
The court then indicated that it understood defendant's frustration but that "there are certain defenses that are available for certain crimes and the court has made its rulings." The court stated that "[i]f there were convictions in this matter, then this matter I expect would be set out for sentencing before me and you've never been in front of me before until this case, but I'm certainly open to hearing any information that you think is pertinent that you think I should hear in terms of—again, if you [are] convicted, before we impose sentence. So, you will be heard, sir."
A jury subsequently found Lebeck guilty of all counts, on October 5, 2017. The following day, the jury found Lucas guilty of manufacturing a controlled substance (§ 11379.6, subd. (a)), possession of marijuana for sale (§ 11359, subd. (b)), and possession of methamphetamine (§ 11377, subd. (a)).
At sentencing, Lucas's attorney stated that she thought that it was clear that "he thought he was doing something that was okay—and . . . I think it goes to his state of mind, and I think he was just trying to make a living." Lucas then stated: "I just had a job, you know . . . I did a job. That's what I did for a living, is—for the cannabis industry. So I didn't know I was doing anything wrong. I just did what my boss told me to do, you know . . . . I am sorry for that, you know that it happened, you know." Lebeck stated that "in my heart, I did not think that this was illegal. [¶] I guess I should have read up on the marijuana laws. I didn't think I had to because I have known several people that have marijuana cards. And a lot of this stuff, I presumed was legal because they were getting it from the clubs. I thought—I just—if I would have [sic] known what I know now, I wouldn't have even done this."
On December 4, 2017, the trial court suspended imposition of sentence before granting Lebeck formal probation for a period of three years with various conditions that included serving 90 days in the county jail. On the same date, the trial court suspended imposition of sentence before granting Lucas formal probation for a period of three years with various conditions including that he serve 50 days in the county jail. Defendants timely appealed.
II. DISCUSSION
Defendants argue that the trial court erred in excluding their statements to police that they believed the cannabis operation was legal because of new marijuana laws and because Ace purported to have the necessary permits. They contend that this evidence provided the basis for a valid mistake of fact or mistake of law defense to some of the charges, such that the court's evidentiary error precluded them from presenting a defense in violation of their federal constitutional rights. In order to understand defendants' arguments, it is necessary to first examine the relevant medical marijuana regulatory framework.
Lucas maintains that he had a valid mistake of law or fact defense to counts 1 (manufacturing a controlled substance) and 4 (possession of marijuana for sale); he does not challenge his conviction in count 5 for possession of methamphetamine. Lebeck's brief is less clear, but we understand him to be arguing that he had a valid defense to counts 1 (manufacturing a controlled substance), 2 (providing space for the manufacture of a controlled substance), and 4 (possession of marijuana for sale).
A. Medical Marijuana Regulatory Background
The Compassionate Use Act of 1996 (CUA) provided limited immunity to patients and primary caregivers in the state of California for two marijuana-related offenses: "possession (§ 11357) and cultivation (§ 11358)." (People v. London (2014) 228 Cal.App.4th 544, 551.) Specifically, the CUA barred the prosecution of patients and/or primary caregivers who possessed or cultivated marijuana for medical purposes based upon the " 'written or oral recommendation or approval of a physician.' " (London, surpra, at p. 551.)
In 2003, the Legislature enacted the Medical Marijuana Program Act, which extended the CUA to the following additional marijuana-related offenses: "possession for sale (§ 11359), transportation or furnishing marijuana (§ 11360), maintaining a location for unlawfully selling, giving away, or using controlled substances (§ 11366), managing a location for the storage or distribution of any controlled substance for sale (§ 11366.5), and the provisions declaring a building used for selling, storing, manufacturing, and distributing a controlled substance to be a nuisance (§ 11570)." (People v. Urziceanu (2005) 132 Cal.App.4th 747, 784 (Urziceanu).) The Medical Marijuana Program Act also added section 11362.775 to the Health and Safety Code. That provision allows collective cultivation of marijuana for "qualified patients" who "associate . . . in order collectively or cooperatively to cultivate marijuana for medical purposes." (§ 11362.775; People v. Orlosky (2015) 233 Cal.App.4th 257, 267 (Orlosky); Urziceanu, supra, at p. 785.)
In 2015, "California enacted the Medical Marijuana Regulation and Safety Act (MMRSA), which, among other things, create[d] a state licensing scheme for medical marijuana." (See Safe Life Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029, 1045.) Among other things, the MMRSA required the State Department of Public Health to promulgate regulations governing the licensing of cannabis manufacturers who used both volatile and non-volatile solvents to produce cannabis products. (Former Bus. & Prof. Code, § 19341, added by Stats. 2015, ch. 689, § 4, eff. Jan. 1, 2016 [now Bus. & Prof. Code, § 26130].) The MMRSA also provided that actions carried out by "a licensee, its employees, and its agents that are (1) permitted pursuant to both a state license and a license or permit issued by the local jurisdiction following the requirements of the applicable local ordinances, and (2) conducted in accordance with the requirements of this chapter and regulations adopted pursuant to this chapter, are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law." (Id., § 19317, subd. (a).) The MMRSA likewise provided that "[t]he actions of a person who, in good faith, allows his or her property to be used by a licensee, its employees, and its agents, as permitted pursuant to both a state license and a local license or permit following the requirements of the applicable local ordinances, are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law." (Id., subd. (b).)
After the passage of Proposition 64 legalized recreational marijuana use, the Governor signed into law the Medicinal and Adult-Use Cannabis Regulation and Safety Act, which repealed the MMRSA and created one regulatory system for both medicinal and adult-use (recreational) cannabis. (Bus. & Prof. Code, § 26000 et seq. as amended by Stats. 2017, ch. 27, § 4, eff. June 27, 2017.)
B. The Trial Court Did Not Err in Excluding Evidence of Defendants' Belief That the Cannabis Operation was Legal
1. Standard of Review
Generally, " 'an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) Here, the trial court's ruling was based on its conclusion that—as a matter of law—defendants could not assert a defense based on the excluded evidence. As the parties agree, we review that conclusion of law de novo. (See e.g., Board of Administration v. Wilson, (1997) 52 Cal. App. 4th 1109, 1129.)
2. The Excluded Evidence Would Not Have Established a Valid Mistake of Law Defense
Defendants argue that their belief that the cannabis operation was legal constituted a mistake of nonpenal law in that they were mistaken as to whether the operation complied with the MMRSA. Alternatively, they contend that their good faith misunderstanding regarding the complex medical marijuana regulatory regime should have immunized them from criminal liability.
Defendants' trial attorneys did not specifically cite the MMRSA below. Anticipating a potential forfeiture problem, Lebeck argues that trial counsel was ineffective in failing to cite the MMRSA. The Attorney General does not argue forfeiture. Because we reject defendants' contentions on the merits, we do not reach the issues of forfeiture or ineffective assistance of trial counsel.
a. Legal Principles
"A mistake of law, in its strict sense, means ignorance that the penal law (of which one stands accused) prohibits one's conduct—and ignorance on this point 'is almost never a defense.' " (People v. Meneses (2008) 165 Cal. App.4th 1648, 1662-1663.) Thus, "[i]t is commonly said that ignorance of the law is no excuse." (People v. Zamani (2010) 183 Cal.App.4th 854, 887.) "There are a number of circumstances, however, in which violation of a penal statute is premised on the violator's harboring a particular mental state with respect to the nonpenal legal status of a person, thing, or action. In such cases, the principle is 'firmly established that defendant is not guilty if the offense charged requires any special mental element, such as that the prohibited act be committed knowingly, fraudulently, corruptly, maliciously or wilfully, and this element of the crime was lacking because of some mistake of nonpenal law.' . . . Thus, a taxpayer may defend against a [tax fraud] charge on the basis, for example, that he mistakenly believed certain deductions were proper under the tax laws, but not on the basis that he was unaware it was a crime to lie on one's tax return." (People v. Hagen (1998) 19 Cal.4th 652, 660, fn. 4.) Courts also have permitted a "defense of ignorance of the law" in cases involving "prosecution under complex regulatory schemes that have the potential of snaring unwitting violators." (United States v. Fierros (9th Cir. 1982) 692 F.2d 1291, 1295 (Fierros).)
b. Mistake of Nonpenal Law
As set forth above, a mistake regarding a nonpenal law is a defense where, because of the mistake, the defendant lacks the mental state required to violate the penal law he or she is charged with violating. But defendants fail to show that their mistaken belief that the cannabis operation was legal under the MMRSA negated the mental state required to convict them of possession for sale of marijuana, manufacturing concentrated cannabis, or providing space for the sale or manufacture of a controlled substance.
i. Possession of Marijuana for Sale
Defendants were convicted in count 4 of possession of marijuana for sale in violation of section 11359, subdivision (b). An element of that crime is specific intent to sell. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175.) Defendants fail to explain how their mistaken belief that the operation complied with the MMRSA negated an intent to sell the marijuana and butane honey oil. They do not claim they believed the products were intended for personal use or to be given away for free. Nor would such inferences have been reasonable considering that police discovered hundreds of pounds of marijuana on the property. Accordingly, defendants' purported mistake of nonpenal law was not a valid defense to count 4.
ii. Manufacturing a Controlled Substance
Defendants were convicted in count 1 of manufacturing a controlled substance in violation of section 11379.6, subdivision (a). Knowledge of the character of the substance—i.e., that the substance being produced is a controlled substance—is an element of that crime. (People v. Coria (1999) 21 Cal.4th 868, 878-880 (Coria).) While Coria did not expound on what it means to know that something is a controlled substance, the cases on which it relied required knowledge that the substance was "a restricted dangerous drug" (People v. Daniels (1975) 14 Cal.3d 857, 861) or a narcotic (People v. Williams (1971) 5 Cal.3d 211, 215).
Defendants argue that, given their belief that the operation was legal, they lacked any knowledge that the butane honey oil was a "controlled substance," as opposed to a legal product. This argument misses the mark. Defendants knew the substance being produced was honey butane oil, a concentrated form of marijuana. (Coria, supra, 21 Cal.4th at pp. 880 ["Merely engaging in chemical synthesis is not enough; the defendant must have knowledge of the facts which make the chemical synthesis unlawful, i.e., that methamphetamine is being manufactured"].) Defendants do not contend that they did not know that marijuana (including concentrated marijuana) is a restricted drug. Their belief that the MMRSA made it legal for them to possess and manufacture that drug does not change the fact that—as they were aware—marijuana is a controlled substance. Thus, defendants' purported mistake of nonpenal law was not a valid defense to count 1.
iii. Making a Space Available for the Manufacture of a Controlled Substance
Lebeck was convicted in count 2 of making a space available for the manufacture of a controlled substance in violation of section 11366.5, subdivision (a). To convict under section 11366.5 the prosecution must prove: "(1) the accused knowingly permitted a controlled substance to be manufactured or stored; (2) for the purpose of sale or distribution to others; (3) in a building under his or her management or control." (People v. Sanchez (1994) 27 Cal.App.4th 918, 923.) Therefore, "it requires that the accused have knowledge that the substance is being manufactured or stored for the purpose of sale or distribution to others." (People v. Dillon (2007) 156 Cal.App.4th 1037, 1045.) There is no dispute that Lebeck knowingly permitted butane honey oil to be manufactured in his shed. For the reasons discussed above as to count 1, Lebeck's mistake of nonpenal law did not negate his knowledge of the character of the substance being manufactured. And, for the reasons discussed above as to count 4, that mistake did not negate any knowledge or intent that the substance be sold.
c. Complex Regulatory Scheme
Defendants argue that we should read a defense of mistake of law into each of the criminal statutes under which they were convicted (and presumably every other provision criminalizing marijuana) because California's marijuana laws are confusing. Defendants were in possession of approximately 380 pounds of marijuana and they were engaged in a sophisticated operation involving the production of butane honey oil. Drugs are heavily regulated items. As such, "[i]t is not reasonable to conclude" that individuals "will innocently assume that the law is unconcerned with" their production, possession, and sale. (Fierros, supra, 692 F.2d at p. 1295.) Therefore, the marijuana laws are unlikely to ensnare unwitting violators. (See ibid. [declining to read defense of ignorance of the law into statute prohibiting transportation and harboring of illegal immigrants because the "subject matter . . . is one highly likely to be subject to governmental regulation," making it unreasonable "to conclude . . . that employers will innocently assume that the law is unconcerned with such practices as transporting the aliens in trucks with radios tuned to border patrol frequencies"]; United States v. Baker (9th Cir. 1995) 63 F.3d 1478, 1492 [noting the "distinction between" cases involving "firearms, corrosive liquids and drugs [which] are dangerous substances that are likely to be regulated, [and] food stamps [which] are a benign article whose prohibited uses may be seemingly permissible"].)
3. The Excluded Evidence Would Not Have Established a Valid Mistake of Fact Defense
Defendants contend their mistake also could be characterized as a mistake of fact to the extent they mistakenly thought Ace had the proper permits.
a. Legal Principles
"A mistake of fact occurs when a person understands the facts to be other than what they are." (Orlosky, supra, 233 Cal.App.4th at p. 275.) A mistake of fact is a defense where "the mistake disproves an element of the offense." (In re Jennings (2004) 34 Cal.4th 254, 277; see Pen. Code, § 26, subd. Three [mistake of fact that disproves any criminal intent is a defense].)
b. Analysis
In view of the foregoing law, the question is whether defendants' mistake—believing Ace had the necessary permits—disproved an element of any of the offenses.
i. Possession of Marijuana for Sale
" 'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]' " (People v. Harris (2000) 83 Cal.App.4th 371, 374.) Defendants do not argue let alone show that their mistake about Ace having unspecified permits disproved any of these elements. Instead, defendants note that section 11362.775 provides a defense to possession of marijuana for sale in certain circumstances. But they do not show that those circumstances existed here or that they mistakenly believed all of those circumstances existed here.
Section 11362.775, subdivision (a) provides 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 medicinal purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under [s]ection . . . 11359 . . . ." Defendants do not contend that they are (or mistakenly believed that they were) qualified patients, persons with valid identification cards, or the designated primary caregivers of such persons. Nor do they contend that they were (or mistakenly believed they were) part of a collective or cooperative. Accordingly, their reliance on section 11362.775 is unavailing.
ii. Manufacturing a Controlled Substance
"Section 11379.6 [subdivision] (a) makes it unlawful to engage in the chemical extraction of a substance as part of the process of manufacturing a controlled substance." (People v. Bergen (2008) 166 Cal.App.4th 161, 168.) Defendants do not contend that their mistake about Ace having unspecified permits disproved any element of that offense. Instead, their claim appears to be that, had the facts been as they understood them, they would have had a valid defense to the charged violation of section 11379.6, subdivision (a). Specifically, they argue that Board of Administration v. Wilson, 52 Cal. App. 4th 110941 (now § 26130) provided a defense to the charge of manufacturing a controlled substance for those who are properly licensed under the MMRSA.
Former Business and Professions Code section 19341 directed the Department of Public Health to "promulgate regulations governing the licensing of cannabis manufacturers" including "for sites that manufacture cannabis products using volatile solvents." Former Business and Professions Code, section 19317, subdivision (a), provided that "[t]he actions of [licensees and their employees] that are (1) permitted pursuant to both a state license and a license or permit issued by the local jurisdiction following the requirements of the applicable local ordinances, and (2) conducted in accordance with the requirements of this chapter and regulations adopted pursuant to this chapter, are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law."
Assuming defendants mistakenly believed Ace was licensed to manufacture cannabis products using volatile solvents (like butane), that mistake is not sufficient to show they had a valid mistake-of-fact defense. They do not specify that the operation was in compliance with applicable local ordinances, the requirements of the MMRSA, and the governing regulations, as required to make the actions of a licensee and his employees "not unlawful under state law . . . ." (Former Business and Professions Code, section 19317, subds. (a) & (b).) Therefore, we cannot say that the mere possession of a license would have made their act of manufacturing butane honey oil innocent. (People v. Lawson (2013) 215 Cal.App.4th 108, 115 [mistake of fact defense exists where defendant has "an actual belief 'in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act . . . .' "].)
iii. Making a Space Available for the Manufacture of a Controlled Substance
Lebeck does not argue that a mistake of fact disproved any of the elements of knowingly making space available for the purpose of unlawfully manufacturing a controlled substance for sale or distribution in violation of section 11366.5, subdivision (a). Rather, he contends that if Ace had been licensed (as Lebeck mistakenly believed), then he would have had a valid defense to the charged violation of section 11366.5, subdivision (a). For that argument, Lebeck relies on former Business and Professions Code, section 19317, subdivision (b), which stated that "[t]he actions of a person who, in good faith, allows his or her property to be used by a licensee, its employees, and its agents, as permitted pursuant to both a state license and a local license or permit following the requirements of the applicable local ordinances, are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law." (Former Bus. & Prof. Code, § 19317, subd. (b) [italics added].)
Even if Ace was a licensee, Lebeck fails to show that the foregoing provision would have provided a full defense to his act of allowing the manufacture of butane honey oil on his property. Nothing in the record or the briefs on appeal indicates whether the operation complied with the requirements of any hypothetical permits or applicable local ordinances, as required by former Business and Professions Code, section 19317, subdivision (b).
Defendants try to blame the trial court for the undeveloped nature of their arguments and any deficiencies in the record, saying the trial court "cut off" their ability to develop the record. But the trial court specifically indicated a willingness to reconsider its ruling "[i]f there's something that comes up that I'm not aware of . . . ." Lebeck's counsel requested that the court reconsider its ruling at the beginning of trial without offering any new evidence or argument.
For the foregoing reasons, we conclude that the trial court did not err in excluding defendants' statements regarding their belief that their conduct was legal nor did it deny them the right to present a viable defense.
C. Unanimity Instruction
Defendants argue that the trial court erred when it denied their request for a unanimity instruction with respect to the charges of possession of marijuana for sale because the jury could have found them guilty of possession of marijuana based on distinct stores of marijuana. Lebeck maintains that the jury could have convicted him based on the butane honey oil in the lab or the marijuana plant material. Lucas says there were five stores of marijuana that could have been the basis for his conviction: the butane honey oil in his residence, the marijuana plants that were still in the ground, the marijuana plants inside the shed, the butane honey oil inside the shed, and the marijuana outside the shed on the property.
The Attorney General responds that the trial court properly denied the request for a unanimity instruction because the jury rejected the defense that Lebeck and Lucas were "unconnected to the operation of the . . . lab," and because the prosecution specifically elected to rely on the butane honey oil found in the shed to support the possession for sale charges.
1. Legal Principles and Standard of Review
"As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) In appropriate cases, the trial court is required to give such an instruction sua sponte and assertions of instructional error are reviewed de novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).) Even so, there are exceptions to the rule requiring a unanimity instruction when several acts are alleged, including that there is no need for a unanimity instruction "if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Jennings, supra, at p. 679.)
2. Analysis
At trial, Lebeck's defense to the possession of marijuana for sale charge was that he was unaware of the marijuana and butane honey oil. Lucas's defense to the charge was that there was no evidence that the marijuana was intended for sale. Accordingly, both defendants provided the same defense to the possession for sale charge with respect to each quantity of marijuana and/or butane honey oil found on their property.
"[W]here the defendant offered the same defense to all criminal acts, and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a unanimity instruction is harmless error." (Hernandez, supra, 217 Cal.App.4th at p. 577.) Although Lucas acknowledges that his defense to the possession for sale charge was that there was no evidence that the butane honey oil was intended for sale, he argues that there was a risk that the jury accepted this argument with respect to the butane honey oil found in shed but rejected the defense in regard to the butane honey oil found in his room. Specifically, Lucas contends that his defense was that there was no packaging indicative of sales but that the butane honey oil found in his house was "packaged into small pots." This argument mischaracterizes the record. In fact, there was no testimony that the butane honey oil found in Lucas's room was "packaged" into small pots or otherwise prepared in such a way as to suggest it was intended for sale. Officer Jurevich testified only that it was found in "pots" that were "sitting there." Lucas has not demonstrated any risk that the jury understood his defense to only apply to the butane honey oil found in the shed.
Considering that defendants provided the same defenses to the various acts constituting the possession for sale charge and the jury rejected their defenses, any error is harmless under any standard. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818.)
D. Cumulative Error
Finally, Lucas argues that the cumulative effect of the trial court's errors require reversal. Since we have found no error, there is no error to cumulate. (See e.g., In re Reno (2012) 55 Cal.4th 428, 483; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.